D.E.A.'s Cannabis Change—Seeing Through the FUD
Opponents Continue Exhaling Clouds of Fear, Uncertainty and Doubt.
The D.E.A. confirmed to the White House that it would reclassify cannabis under the federal Controlled Substances Act (C.S.A.), and make cannabis a prescription medication. Almost immediately the Biden administration leaked the D.E.A.’s decision to The Associated Press (A.P.).
As yet, nothing has been published in the Federal Register, the official place for such news.
And already those opposed to reform have started new campaigns of fear, uncertainty and doubt (FUD), while the nation awaits official publication of the D.E.A.’s decision.
According to Wikipedia—which, on this occasion, is accurate—FUD “is a manipulative propaganda tactic used in sales, marketing, public relations, politics, polling, and cults. FUD is generally a strategy to influence perception by disseminating negative and dubious or false information, and is a manifestation of the appeal to fear.”
Previous anti-reform FUD included—
the assertion by Mitt Romney et al. that reclassifying cannabis would violate international drug-control treaties, despite the facts that 1) nine other countries have legalized recreational cannabis without any treaty difficulties whatsoever and 2) the relevant treaties require that countries produce enough narcotic drugs to meet medical needs; and
the assertion that the federal Department of Health and Human Services (H.H.S.) had used bogus criteria to formulate its recommendation to reclassify cannabis as a prescription drug, despite the facts that 1) H.H.S. sets the standards for such evaluations and 2) the law binds the D.E.A. to follow H.H.S.’s drug-classification recommendations, not the other way around.
New FUD is now disseminating. James Farrell, for example, writes at Forbes:
WHAT WE DON’T KNOW
It’s not clear when the change would take effect—the DEA’s proposal still needs approval from the White House’s Office of Management and Budget, according to the Associated Press. Beyond that, the proposal would then have to go through a public comment period before the DEA could publish the final rule.
WHAT TO WATCH FOR
There’s still a lot that can happen before the change takes effect. The public comment period could push the DEA to change course, Brett Schuman, a co-chair of the Goodwin law firm’s cannabis practice, told Forbes in an email. Additionally, the new policy “likely will be challenged by someone, somewhere in a lawsuit, and of course could be reversed depending on the outcome of the November 2024 election,” Schuman said.
Others have written that federally reclassifying cannabis as a prescription medication would leave patients subject to state-law criminal penalties in states which have banned cannabis for medical uses.
Here are the facts:
The White House is pushing reform, not opposing it. In the upcoming elections, Biden and other Democrats stand to benefit from reform with young voters, whom they have struggled to court. Any insinuations that the White House would turn-around the decision are ludicrous.
The vast majority of Americans favor cannabis reform. That majority transcends race, age, gender and party affiliation. Public comments will overwhelmingly support the decision.
Under the law, critics face an uphill battle to sue to maintain the total federal ban on cannabis. Any such suits would likely be dismissed for lack of standing: Simply put, a citizen may lobby to enact or prevent changes in law, but no citizen has a lawful right to prevent a duly enacted change in law that decriminalizes his neighbor’s conduct. Their last resort is the Administrative Procedure Act, but it requires they show that H.H.S. or the D.E.A. had violated the agencies’ own rules by short-circuiting the rules for such changes. In this case, however, H.H.S. and D.E.A. each took months to follow the relevant rules.
The scientific conclusions in question for federal reclassification are 1) whether cannabis has accepted medical uses and 2) whether cannabis is highly abused as compared to substances like heroin. The most-active element of cannabis, T.H.C., is already an F.D.A.-approved prescription called Marinol. Cannabis’s other element of note, C.B.D., is also on the shelf already as an accepted medicine. For decades, scientific studies have unambiguously found cannabis less prone to abuse than alcohol, which is not federally regulated in any form. In order for public comments to affect reclassification they must negate these facts, which is, objectively speaking, absurd.
Under the U.S. Constitution, federal laws trump conflicting state laws. States would be ill-advised to continue to criminalize cannabis once it is a federally-regulated prescription medication.
In conclusion, some remain opposed to cannabis reform. But, as the multi-year process continues, such positions are increasingly untenable. Betting against reform is now, more than ever, an unlikely proposition.