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It’s still unclear how state marijuana policies will change under Biden’s plan. • Indiana Capital Chronicle

United States Attorney General Merrick Garland has proposed easing the illegal status of marijuana at the federal level – but this does not mean that the federal government currently condones the use of marijuana for recreational or medicinal purposes in many states that have legalized it.

Moving marijuana from the government’s list of the most dangerous and least useful substances to a less serious category was a clear signal that the federal government, at least under President Joe Biden’s administration, wants to ease restrictions on an increasing number of state drugs that have been legal for more than a decade.

U.S. Attorney General Merrick Garland makes a statement before the U.S. Department of Justice on August 11, 2022, in Washington, DC. (Drew Angerer/Getty Images)

For years, the federal government has not sought to enforce state-legal marijuana activities, and this latest move appears to reinforce that approach.

But it hasn’t resolved many of the thorny issues that arise from the disconnect between what’s legal in dozens of states and what the federal government allows.

It’s unclear what exactly the rescheduling will mean. The Justice Department has not released the text of Garland’s proposal — a Justice Department spokesman this week declined States Newsroom’s request for a copy, and state regulators say the proposal has not been made available to them.

Even if the proposal were public, it could be expected to change over the months of rulemaking.

Here are some questions about what is known at this early stage about what rescheduling will and won’t do.

Q: Is weed legal now?

NO.

Even in states that have legalized recreational use, the federal government would likely still consider the state’s system illegal under federal law.

Other Schedule III drugs, including Tylenol with codeine and anabolic steroids, are highly regulated and available only by prescription from pharmacies.

Legal state medicinal marijuana dispensaries do not fit this description, and recreational dispensaries fall even further from the Food and Drug Administration’s requirements for Schedule III drugs.

“It doesn’t make marijuana activities legal,” Shawn Hauser, a partner at Denver-based marijuana law firm Vicente LLP, said during a May 3 webinar. “They do not sell FDA-approved drugs, are not licensed, and do not meet Schedule III regulatory requirements. Therefore, cannabis dispensaries and legal state dispensaries will continue to violate federal law.”

Q: What is the difference between Annex I and Annex III?

Answer: The most important thing is to recognize that a drug may have some medicinal value.

Under the federal Controlled Substances Act, the Drug Enforcement Administration has five levels of drug classification.

Schedule I is the most restricted level, covering drugs most ripe for abuse that have no medicinal value. Other drugs on the list include heroin and LSD.

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Because the definition of a Schedule I substance does not include medicinal uses, it is illegal to even test substances on the list.

Schedule III is the strictest level and recognizes some medicinal value, which raises hopes that research into the drug can be improved.

“Moving cannabis to Schedule III would be a major step toward recognizing the medical uses of cannabis, which voters here overwhelmingly recognized in 1998.” the Washington State Alcohol and Cannabis Board said in a May 1 statement. “And it would mean very clearly that the federal government no longer considers cannabis to be one of the most dangerous drugs.”

Q: How are countries preparing?

A: Until they have more details, state regulators can’t do much, Amanda Borup, senior policy analyst at the Oregon Liquor and Cannabis Commission, said in an interview.

“We really have to wait and see what they come out with,” she said, referring to DEA rulemaking.

Other states are considering what the impact might be.

A statement from the Washington Alcohol and Cannabis Board said the rescheduling would “hopefully” ease restrictions on cannabis research, although it is “possible” the move would allow legal businesses to take advantage of tax breaks available to other industries.

Q: Why does research matter?

A: Marijuana advocates have had trouble providing evidence of any benefits from marijuana because research has been limited, which in turn has made it difficult to demonstrate that restrictions should be lifted.

It could also help establish industry guidelines on ancillary issues. For example, research limitations contribute to a lack of data on what pesticides can be safely used in marijuana cultivation.

Q: What impact does this have on tax, banking and criminal justice policy?

A: Changing the deadline alone likely won’t address several complaints from marijuana industry members and advocates about federal prohibition.

But some hope that the Biden administration’s signal will spur momentum toward other changes.

Most businesses can deduct their costs from their income and pay tax on their net income. According to the advocacy group Marijuana Policy Project, marijuana companies cannot take advantage of this deduction, known as 280E.

Schedule I status also makes access to the U.S. banking system more difficult.

Others complain that the legalization of marijuana in some states has been unfair to communities of color, which have been most active in enforcing the law.

Changing the schedule wouldn’t solve these problems on its own, but supporters hope it’s a sign of momentum toward full legalization.

Senate Majority Leader Chuck Schumer and Democratic Sens. Cory Booker of New Jersey and Ron Wyden of Oregon reintroduced a bill last week to take the drug off the schedule altogether. The measure includes an extension of the 280E tax credit and several provisions aimed at improving social equity.

Q: Could Trump reverse this if he wins in November?

Answer: Probably, although there is no indication that he has plans to do so.

It’s unclear what the status of the rescheduling will be when the next Inauguration Day arrives on Jan. 20.

If former President Donald Trump regains the presidency and the rescheduling is still pending, he could direct the DEA and Justice Department to reject the rescheduling.

Trump did not comment on the matter.

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