MJBiz - November/December 2023 - 55

It also could lead to government
appeals that would place rescheduling
in the hands of the U.S. Supreme Court.
Given conservative Justice Clarence
Thomas' recent statement that " a
prohibition on ... marijuana may no
longer be necessary, " the nation's
highest court might be the venue for a
final victory.
Either way, rescheduling means
that federal tax reform-something
the industry has clamored for-seems
inevitable.
WHAT STILL MUST HAPPEN
Yet, as critics and skeptics point out,
rescheduling is not legalization.
Downgrading cannabis from
Schedule 1 to Schedule 3 of the CSA,
which permits doctors and DEAlicensed
pharmacies to provide
FDA-approved drugs such as anabolic
steroids, ketamine and Tylenol with
codeine, might raise more questions
than answers for an industry that
largely operates independently
of physicians and mainstream
pharmacies.
" It may be a halfway victory for
the industry " if, suddenly, federal
authorities insist that doctors must
prescribe marijuana like other drugs,
observed Joshua Horn of Philadelphiaheadquartered
law firm Fox
Rothschild.
Another complication would be a
new resident at the White House.
It's possible that Biden-whose
approval rating stood at 42% in August,
according to research firm Gallup,
and who is neck and neck with former
President Donald Trump in most
presidential polling-could lose his
reelection bid.
As president, Trump was mostly
hands-off, granting the cannabis
industry no favors while generally
leaving state-legal marijuana alone.
And though neither Trump nor
his distant rivals for the Republican
nomination have made marijuana
a 2024 campaign issue, with reform
Andrew
Kline
now more closely associated with
Democrats, whomever becomes
president might choose to use their
power to change course yet again.
" The one caution I give is, there is a
world in which litigation pushes this
past an election, and there is a world
in which Biden doesn't get reelected
and the new president says, 'Pull that
back. I don't want to do that,' " warned
Andrew Freedman, a former Colorado
cannabis czar who is a partner at DC
law firm Forbes Tate and executive
director of the Coalition for Cannabis
Policy Education and Regulation,
an organization of large marijuana
multistate operators.
Rescheduling, rather than
descheduling, has also led to some
voices in the cannabis industry
claiming that the process is a Trojan
horse meant to gift marijuana to big
pharmaceutical interests.
Experts interviewed by MJBizMagazine
agreed that such talk is conspiracylevel
misinformation that's not
grounded in facts or practical reality.
" It's crazy town for a whole variety
of reasons, " Perkins Coie's Kline said.
" What pharmaceutical company is
going to spend billions on clinical
trials or premarket review of a drug
that's already being used by millions
of people? There's no pharmaceutical
company that invests like that. "
" The FDA does not have the
bandwidth or the resources or the
wherewithal or the expertise to
regulate this product, " he added. " They
can't even regulate CBD. So, what are
they going to do? Stop inspecting meat
so they can start cracking down on
cannabis? "
Tellingly, these concerns-while
sometimes loud-are squarely on the
fringe. Horn said his clients reacted to
the rescheduling announcement " with
a lot of optimism-and optimism that
probably hasn't existed in the space for
quite some time. "
No matter what, observers believe
the rescheduling recommendation
Biden set into motion will increase
pressure on lawmakers to act in
Congress, where banking reform as
well as legalization have been stuck in
limbo.
And while long-gestating reforms
are still necessary-such as the Secure
and Fair Enforcement Regulation
(SAFER) Banking Act, which would
allow financial institutions to offer
services to state-licensed cannabis
businesses-they're easier to achieve
when marijuana is not a Schedule 1
drug.
" I think there's a realization in the
administration that Congress is never
going to get this done, " Horn said. " I
think that's part of what's going on here,
why the president was pushing it. "
Rescheduling would have " an
important symbolic effect, " Sklamberg
said. " When the federal government
is saying something is Schedule 1, it
is with the authority of public health
agencies saying this is in a category
of the most dangerous controlled
substances.
" Moving it down to Schedule 3 means
that statement is no longer there, " he
added. " Were I an advocate in a state
to liberalize cannabis laws, that would
make it politically easier for me when
talking to state legislators, when talking
to sheriffs.
" The fact is, changing cannabis laws
is incredibly complicated. It was never
going to be done at the snap of a finger.
" There are steps. And this is a big one. "
mjbizdaily.com | November-December 2023 55
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MJBiz - November/December 2023

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