Top Federal Health Official Tells Lawmakers Marijuana Scheduling Review Is Ongoing, But DEA Makes Final Call

The head of the U.S. Department of Health and Human Services (HHS) says the agency remains committed to “expeditiously” carrying out a scientific review of marijuana as part of President Joe Biden’s scheduling directive last year—but he’s making clear that the final decision is up to the Drug Enforcement Administration (DEA).

Bipartisan members of the Congressional Cannabis Caucus, as well as Sen. Elizabeth Warren (D-MA), led a letter to Biden in December, imploring the administration to take a clear position on federal marijuana descheduling. HHS Secretary Xavier Becerra was copied on that letter and sent a response on Tuesday that was obtained by Marijuana Moment.

“Thank you for your letter to President Biden regarding the scheduling of marijuana. We appreciate your continued interest in this topic,” Becerra said.

Rather than address the main request from the lawmakers for the administration to “recognize the merits of full descheduling,” however, the top federal health official simply reiterated the department’s role in carrying out cannabis scheduling review.

“Consistent with the President’s direction, the Department of Health and Human Services (the Department) has initiated an administrative process to expeditiously review how marijuana is scheduled under federal law,” it says.

“In accordance with the process set forth in the Controlled Substances Act (CSA), the Department conducts a scientific and medical evaluation of a drug or substance and submits that evaluation, along with scheduling recommendations, which are binding as to scientific and medical matters, to the Drug Enforcement Administration (DEA) for a final scheduling determination

Consideration of the factors specified in the CSA ultimately leads DEA to make findings related to a drug’s or substance’s relative abuse potential, safety, medical uses, and dependence liability, and to make a scheduling decision in accordance with those findings.”

Becerra’s response echoed a key point that Food and Drug Administration (FDA) Principal Deputy Commissioner Janet Woodcock made in October, shortly after Biden issued the directive, as well as a mass pardon for people who’ve committed federal marijuana possession offenses.

That is, FDA under HHS will conduct the review—and the findings from that review are binding, but only insofar as the science is concerned. Because scheduling decisions are covered by the CSA, however, DEA makes the final call. And DEA could ultimately decide to keep marijuana is Schedule I.

FDA’s Woodcock similarly said that DEA “has the final word” on any potential scheduling decision following their review.

The letter from Becerra contributes little to the public’s understanding of how far along the department is in its review or how it is defining “expeditiously,” a word that’s been frequently utilized by the relevant agencies since the president made the directive.

The HHS secretary’s official Twitter account posted a link to a Marijuana Moment story about the president’s scheduling action at exactly 4:20pm ET on December 5, seemingly playing into the symbolic number in cannabis culture. (It wasn’t the first time that account shared marijuana news at that time.)

But while it’s been made clear that agencies are working to fulfill the president’s request, questions about the timing of the final recommendations or scheduling decision remain. Marijuana Moment reached out to HHS on Wednesday for comment on the timing of the review process, but a representative was not immediately available.

Meanwhile, Cannabis Caucus co-chair Rep. Earl Blumenauer (D-OR), who led the December letter to Biden alongside Warren, is now circulating a letter, asking fellow lawmakers to join him in demanding transparency from the Biden administration with respect to the rationale for whatever scheduling decisions are made following this review process.

U.S. Attorney General Merrick Garland said at a Senate hearing last week that DOJ is “still working on a marijuana policy” while awaiting the results of the scientific review from health agencies.

Biden, for his part, has routinely touted his cannabis pardons and scheduling directive in the months since October, including most recently at an event commemorating the end of Black History Month.

Read the text of the HHS secretary’s letter on marijuana scheduling below: 

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