Former US Attorneys Urge Federal Officials to Reject Cannabis Rescheduling Recommendation

More than two dozen former U.S. attorneys submitted a letter to federal officials earlier this month that Dentons partner Eric Berlin calls “the arm [of] reefer madness reaching up from the grave.”

The Dec. 13 letter, addressed to U.S. Attorney General Merrick Garland and Drug Enforcement Administration (DEA) Administrator Anne Milgram and signed by 29 former attorneys, comes in response to the U.S. Health and Human Services’ (HHS) August recommendation that cannabis be reclassified under the Controlled Substances Act (CSA). HHS still has not confirmed publicly the details of its recommendation, but Bloomberg, which broke the news, reported that it viewed an unredacted letter sent to the DEA that indicated HHS officials suggested a move to Schedule III. The DEA must now decide whether it will accept or reject that recommendation.

Eric Berlin, partner at Dentons, told Cannabis Business Times that many of the arguments the attorneys make in their recent letter urging rejection of the HHS’ rescheduling recommendation can be disputed with data, which he said, in many cases, supports the opposite of the attorneys’ claims.

“These former U.S. attorneys are some of the primary cannabis prohibitionists over the last decade,” Berlin said. “I mean, these are the folks who have been out there enforcing cannabis prohibition, quite frankly, in discriminatory ways, and their ways have failed. I think that’s what we’re seeing now. It’s hard for them to give it up, but the facts are that implementing the rule of law through state programs has in fact decreased illegal activity and is the solution to problems that those prohibitionists claim to be combating.”

The letter warns that since former DEA Administrator Chuck Rosenberg determined in 2016 that cannabis should remain a Schedule I drug under the Controlled Substances Act (CSA), “marijuana has only become more dangerous, potent and addictive.”

According to the former attorneys, “marijuana sales (even in jurisdictions that have legalized marijuana) in the U.S. remain a profitable enterprise for drug cartels.” They wrote “now is not the time to loosen federal restrictions on a drug that addicts millions of Americans and boosts profits for cartels.”

Evidence for Rosenberg’s decision to continue classifying cannabis as a Schedule I substance—which the attorneys said included claims that “marijuana has high potential for abuse,” “marijuana has no currently accepted medical use in treatment in the United States” and “marijuana lacks accepted safety for use under medical supervision”—is “even stronger today than in 2016,” the attorneys wrote. They claimed cannabis has an addiction rate of 30% and that “the most comprehensive study on the addictive potential of different drugs determined that marijuana is more addictive than several other Schedule I drugs, including LSD, GHB, ecstasy and khat.”

Cannabis is becoming increasingly addictive, the attorneys wrote, due to a “dramatic rise in THC potency.” The attorneys claimed that the average THC potency of cannabis seized by the DEA has increased from 3.96% in 1995 to 15.34% in 2021. When cannabis’s scheduling under the CSA was last reviewed in 2016, the average THC potency was 11.51%, according to the attorneys, who said many concentrates sold in today’s state-legal markets contain more than 99% THC.

Berlin said when it comes to concentrates containing that much THC, “there’s simply none” that exist.

“I personally find it odd because if you’re trying to write a letter that’s persuasive and you’re saying things that aren’t actually fully supported, but at least may have some sheen of believability, why put in something that’s just demonstratively false?” he questioned. “And that’s one of them that’s demonstratively false.”

The attorneys also claimed that data supports the determination that cannabis does not have accepted medical use or safe use under medical supervision, citing “a systematic review on cannabis-based medicines published in June 2023 that concluded with ‘high to moderate certainty’ that ‘cannabis-based medicines increased adverse events related to the central nervous system.’”

In Berlin’s view, however, there must be substantial data demonstrating the medical use of cannabis for the HHS to recommend rescheduling.

The attorneys also expressed concerns about drug cartels, which they claimed benefit from state-legal cannabis programs.

“Almost no one has benefitted from legal weed, but there is one group coming out on top: drug cartels,” they wrote. “Many states have enacted home-grow marijuana laws, which led to cartels growing marijuana in the United States to cut trafficking costs. As marijuana becomes more normalized, the cartels continue to make money on illicit sales. Even in California, where marijuana is legal, the illicit market makes up 75 percent of sales. Law enforcement estimates that over 80 percent of the state’s dispensaries sell products grown illegally. Attorneys and law enforcement already have one hand tied behind their backs when it comes to enforcing federal marijuana laws. Rescheduling marijuana, and thus reducing criminal penalties for marijuana trafficking, removes a key tool federal agents have to prosecute cartels.”

Berlin questioned the validity of these statements, saying that most state-legal cannabis programs include extensive vetting to ensure anyone with ties to drug cartels is unable to participate in the legal industry.

Berlin also expressed uncertainty as to how the attorneys determined that more than 80% of California’s dispensaries sell products manufactured from illegally grown cannabis.

“I’m not sure what they’re talking about or when they’re talking about, but California has Metrc in place and there’s [a] track-and-trace [system], and what’s getting into the dispensary is legal,” he said. “The notion of 80 percent, I just think they’re getting confused in what they’re talking about there.”

The attorneys concluded the letter to Merrick and Milgram by claiming that “reclassifying marijuana to Schedule III will harm public health and safety. Making marijuana Schedule III would allow the industry, which relies on an addiction-for-profit model to make money, to deduct business expenses, as they would no longer be subject to IRS regulation Section 280E. This means marijuana corporations would be able to deduct expenses for advertisements appealing to youth and the sale of kid-friendly marijuana gummies. We can’t afford to create a new Big Tobacco that targets kids. Placing marijuana in Schedule III will allow the industry’s commercialization ability to explode.”

Berlin, on the other hand, sees several benefits of a booming legal cannabis industry.

“I think that by legalizing and regulating cannabis, authorities know every person, company and process involved [from] seed to sale,” Berlin said. “The problem is not legalization; it’s the lack of uniform legalization.”

Berlin also took issue with the attorneys’ description of an “addiction-for-profit model” in the legal cannabis industry.

“That’s, first of all, just straight-out reefer madness,” he said. “And it’s also simply false, right? I mean, if you’re actually in the industry and you’re talking to folks and you’re understanding why folks are involved and what they’re doing and who's benefiting, it’s simply not an addiction-for-profit model at all.”

Berlin also took issue with the attorneys’ argument that cannabis companies target youth with their products. Not only are regulatory safeguards in place to prohibit state-legal cannabis businesses from marketing to children, but he said that the most recent Monitoring the Future survey released by the National Institute on Drug Abuse (NIDA) on Dec. 13—the same day the attorneys submitted their letter—demonstrates that reported drug use among adolescents remained below pre-pandemic levels in 2023.

“The fact is that last week, the Monitoring for Future survey, which studies teen drug habits, completely rebutted that,” Berlin said. “It found that teen cannabis use has remained stable across age groups even as more states legalized for adult use. … In fact, [NIDA has] not reported an increase in perceived availability either, which is kind of interesting. So, whatever is happening with adult-use legalization across the country has not really impacted the younger people, according to the data.”

Additional data has been collected since Rosenberg’s 2016 recommendation, Berlin said, suggesting it is time for another look at federal policy.

“Schedule I is not an indication that the drug is so dangerous,” he said. “That’s something that people mistake. It doesn’t mean that Schedule I drugs are by necessity more dangerous than the Schedule II or Schedule III drugs. What it means is that it has some risk of abuse but has not met the medical efficacy standard. And that was their finding at the time, [in 2016]. So, to say that it was a finding that it had this risk of abuse higher than any other drug is, again, inaccurate.”

Schedule III is “the best we’re reasonably going to do in this situation,” Berlin said, although he acknowledged that, in his opinion, cannabis should have never been scheduled under the CSA to begin with.

“I absolutely think that … the science is there to show that marijuana has medical efficacy [and] that marijuana—even whole plant—clearly helps some people,” he said. “Actually, the science supports that we need a whole lot more science on all this. We are going to get to a world now where folks can actually apply science to this plant and harness it and create better pharmaceuticals [and] better products—more consistent products—at dispensaries. All those things are good. But I think in terms of the rescheduling process, the best that was likely to be done is Schedule III because marijuana is not without harms. I can’t sit here and tell you that it is 100 percent harmless. It does have some harms to some people, and because of that, it has some risk of abuse. At least that’s what the data show us now. It did not meet the standard for the [DEA] to entirely deschedule it, and they were just trying to figure out a place.”

That said, Berlin added that he firmly believes in safe, legal and affordable access to cannabis for those who can benefit from it, and he acknowledged that Schedule III likely will not accomplish that goal.

“I think Schedule III is fine for continuing the science on cannabis and harnessing it and driving it to better good, and perhaps discovering how we mitigate some of the risks, as well,” Berlin said. “I certainly hope and expect that the state-legal programs will continue beyond rescheduling. The rescheduling doesn’t make those state-legal programs any more legal than they are now under federal law. In other words, they would continue to be illegal, but I would expect to see a continued non-enforcement against them and let the laboratories of democracy continue to exist. Obviously, I’d like to see safe, legal, affordable access to marijuana. Schedule III is not the answer to it, but I think it is an effective step along with what we’re currently doing in this country.”