Rescheduling Cannabis: Would 1961 Drug Treaty Be a Possible Wrench?

Following President Joe Biden’s Oct. 6, 2022, request that Secretary of Health and Human Services Xavier Becerra and Attorney General Merrick Garland initiate an administrative process to review how cannabis is scheduled under federal law (it currently remains a Schedule I substance alongside heroin, LSD and methamphetamine), the U.S. Health and Human Services recommended in late August that cannabis be reclassified from a Schedule I to a Schedule III drug within the Controlled Substances Act. This reclassification would impact the cannabis industry in several significant ways, including removing the heavy financial burden of IRS Code Section 280E.

As the industry awaits the U.S. Drug Enforcement Administration’s (DEA) reaction to the HHS recommendation, Cannabis Business Times (CBT) has interviewed and spoken with several legal and industry experts about the significance of the recommendation and the potential outcome following DEA review. In a number of those conversations, a potential wrench that could hinder a possible DEA decision to reclassify cannabis was noted: the Single Convention on Narcotic Drugs, 1961.

The Single Convention on Narcotic Drugs is a treaty that was designed “to replace by a single instrument the existing multilateral treaties in the field … and to make provision for the control of the production of raw materials of narcotic drugs,” including cannabis and cannabis resin, according to the Convention language. Essentially, it has served as the governing document over international drug policy for more than six decades. Among the 61 signatories and 154 parties that adopted the Single Convention are, notably, the United States, as well as Canada and Uruguay, which have both legalized cannabis at the federal level.

In a recent interview with CBT, Shane Pennington, partner at Porter Wright Morris & Arthur LLP and a well-known cannabis advocate and expert, commented on what may follow HHS’s recommendation and what could hinder the DEA’s adoption of the recommendation. “The ways we could sabotage this at this point are, one, the treaty issue. DEA can overrule HHS’s recommendation if it says the [Single Convention on Narcotic Drugs] requires them to.”

When asked, “What are the chances you think the Single Convention on Narcotic Drugs is going to play a role in this?,” Pennington said, “When DEA goes to write a proposed rule and a final rule, it will have no choice but to address the treaty. Because the treaty has always factored into cannabis scheduling in the past, and the agency just can't ignore that, or it definitely will get dunked on judicial reviews. But ultimately, the fact that the president of the United States is behind this and so many Americans are behind it … and now HHS would support rescheduling despite the treaty, I expect that to carry the day.”

And some experts suggest that Canada and Uruguay may have forged a path for the U.S. to potentially move to reclassify cannabis with little political repercussions on the global stage.

Uruguay “became the first country to legalize the growing, sale and smoking of marijuana” in 2013, Reuters reported.

“Uruguay's envoy to Ottawa says his small South American country has opened up some breathing room for marijuana legalization within international treaties that have outlawed recreational pot for decades,” Global News reported in 2017, prior to Canada’s federal cannabis legalization. “Ambassador Martin Vidal credits his country, the first to legalize recreational cannabis at a national level, as something of a trailblazer for countries like Canada that are planning to embark on the same path.”

Canada legalized cannabis at the federal level in 2018. What followed was a public statement from the International Narcotics Control Board (INCB)—"an independent body, established by the 1961 Single Convention on Narcotic Drugs,” per the organization’s website—voicing “regret” at the Canadian government’s legalization of cannabis for non-medical use and a promise to “remain engaged with the Government of Canada on this serious issue.”

“In 2018, the INCB expressed deep concern about Canada's cannabis legalization for nonmedical use, and the board sought to shame the country,” Lucas Richert—Ph.D., professor & George Urdang Chair in Pharmacy History at the University of Wisconsin-Madison, and executive director of the American Institute of the History of Pharmacy and the Transdisciplinary Center for Research on Psychoactive Substances—told CBT. “The 13-member board publicly called out Canada for failing to adhere to international law and neglecting the safety and welfare of people. Since then, there has been far less public condemnation. And the violation of the Single Convention treaty appears to have been ignored by both the government of Canada and the INCB. I certainly haven't any detected major sanctions or political repercussions,” Richert said.

“Interestingly the INCB makes the case that legalizing the use of cannabis creates higher consumption and lowers risk perception,” he added, among many other “findings … that the INCB has put forward about how Canada's and several other countries' legalization efforts might cause harm. Yet I would also point out that the INCB 2022 report articulates that member states have different options when thinking about giving citizens access to nonmedical cannabis. The committee of 13 members suggested 'decriminalization and depenalization as alternative routes for cannabis offences.' Basically, [the] INCB report notes that member states can give access to cannabis, but within the confines of international law.”

As of 2021, more than 40 countries had legalized cannabis fully or partially for medical and/or adult use, according to CBT’s Cannabis Legalization World Map.

In March 2023, approximately six months after President Biden’s call to review cannabis’s classification as a Schedule I drug, the INCB issued a press release stating, “The International Narcotics Control Board expresses concern over the trend to legalize non-medical use of cannabis, which contravenes the 1961 Single Convention on Narcotic Drugs.”

To gain more clarity on what, if any, impact the Single Convention and the INCB might have on the DEA’s impending response to the HHS recommendation, CBT spoke with James H. Mills, noted historian and professor of Modern History at Glasgow, Scotland-based University of Strathclyde, who wrote extensively about the Single Convention’s origins, as well as the United Nations’ and the World Health Organization’s role in the Convention’s development, dating back to 1946, in his report, “The IHO as Actor: The case of cannabis and the Single Convention on Narcotic Drugs 1961.” (Editor’s note: CBT reached out to the INCB for comment but has not heard back as of press time.)

Here are Mills’ insights on whether the Single Convention may be a potential wrench as some suspect, and if so, to what degree.

Noelle Skodzinski: Can you share your insights on the purpose and intent of the creation of the Commission on Narcotic Drugs (CND), the Single Convention on Narcotic Drugs and the involvement of the UN and World Health Organization (WHO) at the time, the roots of which began to grow per your report as early as 1946?

James H. Mills: All of the above were legacies of the League of Nations, the UN predecessor established after the First World War. The international drugs regulatory system had evolved from concerns about opium trading in Asia during the 19^th century but by 1946 had expanded to incorporate debates about “traditional” substances such as cannabis, and modern pharmaceuticals like cocaine and morphine. The Single Convention on Narcotic Drugs was the outcome of a 15-year effort to integrate the various agreements signed under the League of Nations. It reflected the tensions between various nations and blocs, the efforts of a hawkish secretariat at the UN to take a highly interventionist approach to the various substances, and the limitations of scientific and medical research in the period (particularly on cannabis).

NS: Considering the Single Convention on Narcotic Drugs was established in 1961, 62 years ago, what are your thoughts on its relevance today?

JHM: It was less a forward-looking instrument than a retrospective one, designed to make sense of the efforts at international regulation of “narcotics” that had been evolving since the start of the 20^th century.  It therefore looks cumbersome and ineffective today, particularly as societies, economies, and the technologies and ideologies of governments have changed so much in the last 60 years.

NS: Per the INCB website, “INCB is the independent, quasi-judicial body charged with promoting and monitoring Government compliance with the three international drug control conventions: the 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances, and the 1988 Convention against Illicit Traffic in Narcotic Drugs.” Can you clarify what its role is as a “quasi-judicial body” and what actions it can take, if any, against countries that don’t comply with the three international drug conventions?

JHM: My understanding of “quasi-judicial body” is that it sees itself as sitting in judgment on governments and how far they comply with the 1961 Convention (and the various treaties that have followed it). As far back as the 1950s, governments had misgivings about the powers that the UN was trying to claim over drugs, and there has been a tension between national sovereignty and the reach of the CND ever since.

NS: When Canada federally legalized adult-use cannabis Oct. 17, 2018, it did so in violation of the Single Convention. The INCB issued a press release in response, stating in part: “INCB maintains that by moving forward with the legalisation [sic] of cannabis for non-medical purposes in disregard of its legal obligations and diplomatic commitments, the Government of Canada has contributed to weakening the international legal drug control framework and undermining the rules-based international order.” Have you kept abreast of the reaction to Canada’s federal legalization and any repercussions resulting from noncompliance with the treaty? Has this been a significant political issue/conflict for Canada?

JHM: Ever since Uruguay took its own path over a decade ago, the INCB's impotence to effectively censure the policy of national governments has been increasingly obvious. So I suspect that the Canadian administration has taken little notice of the INCB, and paid more attention to what has been happening in other places that have taken more liberal approaches, particularly in the U.S.

NS: Based on your experience as a historian and extensive knowledge of the history in the development of the 1961 Single Convention on Narcotic Drugs, what do you think are the potential repercussions from the UN or INCB of a possible reclassification of cannabis in the U.S. from a Schedule I to a Schedule III drug, which would make the U.S. in noncompliance with the Single Convention?

JHM: There would be few repercussions for the U.S., particularly in a broader foreign policy context where the Trump administration picked other fights with the UN, and the latter is regarded with some suspicion by many politicians. However, it would be a significant blow to the INCB and the UN. However, the INCB stance on cannabis has been softening, so a clash may not be necessary.

I might add that the devil is in the details, of course; the INCB has recognized that measures to decriminalize or de-penalize the personal use and possession of small quantities of drugs are consistent with the provisions of the drug control conventions. So there are grounds for compromise.