Cannabis and the U.S.
Controlled Substances Act
Jon Gettman
ABSTRACT. The scheduling of cannabis under the Controlled Substances Act (CSA) has established legal precedents that determine how
scientific evidence affects its regulation in the United States. This background challenges three common fallacies that make it seem marijuana
prohibition is the only viable policy outcome. A contemporary effort to
reschedule cannabis is based on recent findings that have established
that marijuana lacks the high potential for abuse required for Schedule I
or Schedule II status under the CSA. The primary policy issue is not,
then, whether marijuana is the best medicine but instead whether people
who use it medically should be treated as criminals. [Article copies
available for a fee from The Haworth Document Delivery Service:
1-800-342-9678. E-mail address: <getinfo@haworthpressinc.com> Website:
<http://www.HaworthPress.com> 2001 by The Haworth Press, Inc. All rights
reserved.]
KEYWORDS. Cannabis, cannabis use, cannabinoids, marijuana, marijuana use, tetrahydrocannabinol, dronabinol, drug control, drug policy,
marijuana laws
INTRODUCTION
The United States Congress established the present system of regulating drugs according to their supposed harmfulness in 1970 (US
Code Cong, Adm News 1970). The Controlled Substances Act (CSA)
Jon Gettman has recently completed his PhD in public policy at George Mason
University.
Address correspondence to: Jon Gettman, P.O. Box 20227, Washington, DC
20041.
Journal of Cannabis Therapeutics, Vol. 1(1) 2001
2001 by The Haworth Press, Inc. All rights reserved. 9596 JOURNAL OF CANNABIS THERAPEUTICS
created five regulatory schedules with which to classify drugs and
substances (21 USC 812) according to legal and scientific criteria
specified in the legislation (21 USC 812 (b); 21 USC 811 (c)). The
interpretation of these statutes was subsequently clarified by the US
Court of Appeals in NORML v. Ingersoll (497 F.2d 654 (1974)) and
NORML v. Drug Enforcement Administration, (559 F.2d 735 (1977)).
While the initial placement and scheduling of substances was set forth
in the Act, Congress also provided a mechanism for making changes
in the schedules. Drugs and substances can be added, rescheduled, or
removed from regulation under the CSA as justified by scientific
evidence and according to federal rulemaking procedures. Rescheduling proceedings require the filing of a petition by the Justice Department, the Department of Health and Human Services (DHHS), or any
interested party (21 USC 811 (b)).
Schedule I drugs are subject to a near complete prohibition and are
only legally available for research under the tightest controls. The CSA
states that a drug may not be placed in Schedule I unless three findings
are established. The drug must have a high potential for abuse relative
to other controlled substances, no currently accepted medical use in
the United States, and lack accepted safety for use of the drug under
medical supervision (21 USC 812 (b)(1)).
Cannabis was placed as marijuana in Schedule I by Congress despite clear evidence it failed to meet these criteria. The Nixon Administration acknowledged that cannabis lacked the dependence liability
required for either Schedule I or Schedule II status, but requested that
marijuana be placed in Schedule I anyway pending the then-forthcoming work of a national commission on marihuana and drug abuse
(Egeberg 1970, 4629):
Some question has been raised whether the use of the plant itself
produces ‘‘severe psychological or physical dependence’’ as required by a Schedule I or even Schedule II criterion. Since there
is still a considerable void in our knowledge of the plant and its
effects of the active drug contained in it, our recommendation is
that marihuana be retained within Schedule I at least until the
completion of certain studies now underway to resolve this issue.
‘‘Certain studies’’ refers to a then forthcoming Commission on
Marihuana and Drug Abuse that was mandated with the passage of the
Controlled Substances Act (21 USC 801; P.L. 91-513; P.L. 92-13).Jon Gettman 97
This commission eventually recommended the decriminalization of
marijuana (National Commission on Marihuana and Drug Abuse
1971).
The National Organization for the Reform of Marijuana Laws
(NORML) filed a rescheduling petition in 1972 arguing that marijuana
lacked the high potential for abuse required for Schedule I status. The
US government refused to accept the petition until so ordered by the
US Court of Appeals in NORML v. Ingersoll (497 F.2d 654 (1974)).
Subsequently the Court ordered the Drug Enforcement Administration
(NORML v. DEA, (559 F.2d 735 (1977)) and the Department of Health
and Human Services (NORML v. DEA et al. (1982)) to adequately
process the petition. Fourteen years after the petition was filed public
proceedings before an Administrative Law Judge (ALJ) were held. By
this time the proceedings had narrowed to the single issue of whether
cannabis had an accepted medical use (DEA 1986). The ALJ determined that marijuana did have an accepted medical use in the United
States and recommended its rescheduling to Schedule II (Young
1988).
Administrative Law Judge Francis Young based his determination
that cannabis had an accepted medical use in the United States on a
standard adopted from litigation of medical malpractice suits. The
burden of proof used in this determination was whether the therapeutic
use of cannabis was recognized by a respected minority of the medical
community, and Young found convincing evidence in the record that
contemporary therapeutic use of cannabis was indeed so recognized
(Young 1988).
The DEA rejected Judge Young’s standard for evaluating accepted
medical use, instituted their own, and declined to accept the ALJ’s
recommendation; DEA adopted their own standards which relied
heavily on journal publication and other commonly utilized scientific
criteria (Lawn 1989; Bonner 1992). The Court of Appeals ruled in
ACT v. DEA (930 F.2d 936 (1991)) and reaffirmed its decision in
ACT v. DEA (15 F.3d 1131; (1994)), twenty two years after the
original petition was filed, that DEA’s own standards and decision
were neither unreasonable, arbitrary, or capricious.
The scientific record in these original rescheduling proceedings
closed in early 1989. Later that year a scientific revolution in understanding the effects of marijuana and cannabinoid drugs occurred.
Before this time, the scientific basis of marijuana’s characteristic ef-98 JOURNAL OF CANNABIS THERAPEUTICS
fects was not known. Marijuana’s actions have subsequently been
elucidated to occur through an endogenous cannabinoid receptor system which has subsequently revolutionized scientific understanding
(Howlett et al. 1990; Herkenham 1992; IOM 1999).
The CSA establishes the scope of the scientific inquiry that should
be used to determine if a substance meets the requirements of any of
the five schedules. The DEA is required to ask DHHS for scientific
and medical reviews, and DHHS must consider eight factors in their
evaluation. These factors include: (a) the actual or relative potential
for abuse, (b) pharmacology, (c) other scientific knowledge of effects,
(d) the history and pattern of abuse, (e) the scope and significance of
abuse, (f) whether there is a risk to public health, (g) psychic or
physiological dependence liability, and (h) whether the substance is a
precursor to a controlled substance (21 USC 822 (c)).
As a private citizen the author filed a new petition for marijuana’s
rescheduling in 1995. This petition argued that the discovery of the
cannabinoid receptor system and contemporary findings in each of the
eight areas listed above clarified that marijuana does not meet the
required criteria for Schedule I or Schedule II status. The petition
consisted of an extensive literature review of cannabinoid research
findings published between 1988 and 1994. The DEA accepted the
petition for filing on July 17, 1995 (Greene 1995) and after extensive
review determined that it provided sufficient grounds for removal and
rescheduling. In December, 1997 the DEA formally referred the petition to the DHHS for a binding scientific and medical review (Whalen
1997), currently underway.
The results of this review may also require the United States to
amend international treaties regarding cannabis in addition to rescheduling marijuana under the CSA. With respect to the scheduling of
THC, the active ingredient in marijuana, the US government recognized that the DHHS review process could conceivably require
amendment of international treaties (Memorandum of Federal Respondents, NORML v. DEA 1982, 19):
It is prudent for DDHHS to provide a complete scientific and
medical evaluation on THC at this time, because even if the
ultimate DHHS recommendation is found to be inconsistent with
current treaty obligations, the United States could petition for
international rescheduling.Jon Gettman 99
This recognition cites a Court of Appeals Ruling on a prior marijuana rescheduling petition which makes reference to (NORML v. Ingersoll 1974, 658):
. . . a subsidiary contention that even if there are current treaty
obligations, the executive officials have a duty to consider the
petition toward the objective of possible treaty modification of
legislative or treaty action.
COMMON MISCONCEPTIONS ABOUT MARIJUANA
AND THE CONTROLLED SUBSTANCES ACT
The preceding policy context for evaluating marijuana’s scheduling
under the CSA is frequently misunderstood. Three pervasive fallacies
about national marijuana policy in the United States inhibit discussion
of the relevance of recent scientific findings. All derive from a failure
in the application of the standards for regulating drugs under the
Controlled Substances Act. These fallacies make it seem that marijuana prohibition, the status quo, is the only viable policy outcome.
The first fallacy is that any indication that marijuana has a dependence liability justifies its placement in Schedule I of the CSA. The
Controlled Substances Act distinguishes the relative abuse potentials
of drugs. Schedule IV was added during the legislative process to
distinguish the abuse potential of benzodiazepines from that of the
barbiturates placed in Schedule III, which in turn are distinguished
from drugs such as cocaine in Schedule II, or heroin in Schedule I.
The second fallacy is that marijuana must remain in Schedule I if it
has no accepted medical use, and is restricted to Schedule II if it does.
In NORML v. DEA (1977) the Court of Appeals held that all three
requirements are necessary to justify Schedule I status, and that a drug
or substance’s potential for abuse is the most important criterion. The
highest potential for abuse is also a requirement for Schedule II status.
If marijuana does not have the highest abuse potential relative to other
drugs it can not be properly scheduled in either Schedule I or II.
In other words court rulings have established that Schedule I is not
the default classification for drugs or substances without ‘‘accepted
medical use in the United States.’’ If it were, the third fallacy would
instead be valid, which is that marijuana must remain in Schedule I
unless it can be proven to provide optimum results relative to other
drugs.100 JOURNAL OF CANNABIS THERAPEUTICS
These three fallacies establish artificial standards for evaluating the
significance of marijuana research. The first fallacy is the basis for
claims that any evidence of dependence liability justifies marijuana’s
Schedule I status. The second is the basis for assertions that ‘‘accepted
medical use’’ is the primary basis for scheduling under the CSA. The
third fallacy is the basis for claims that marijuana should be held to a
different and higher standard than any other drug in establishing ‘‘accepted medical use.’’ All three ignore existing court rulings.
MARIJUANA’S ABUSE POTENTIAL
In the January 1998 edition of the American Journal of Public
Health Joseph Califano wrote (Califano 1998, 8):
Recent neuroscientific studies have demonstrated in stunning
detail the changes in brain chemistry that marijuana and cocaine
cause, opening up possibilities for new treatments. They also
challenge old beliefs about the supposed ‘‘safety’’ of marijuana
use. The evidence indicates a biomedical link between use of
alcohol, nicotine, marijuana, cocaine, and heroin, because all of
these substances affect dopamine levels in the brain through
common pathways. (Tanda et al. 1998; Rodriguez de Foncesa et
al. 1998) Recent research also demonstrates that cessation of
marijuana use brings on withdrawal symptoms, which may encourage a user to resume marijuana use or to try other drugs such
as cocaine or heroin. (Tanda et al. 1998; Rodriguez de Foncesa et
al. 1998)
It has long been recognized that some individuals’ use of marijuana
is characterized by dependence and that the dependence liability of
marijuana is relatively less addictive than alcohol or tobacco, and
certainly not comparable to the dependence liability of cocaine or
heroin. Despite the importance of the recent scientific breakthroughs
in describing how cannabis produces its characteristic effects little has
emerged to challenge the conclusions of a frequently cited 1986 literature review by Leo Hollister in the Pharmacological Review (Hollister
1986, 17):
Physical dependence is rarely encountered in the usual patterns of
social use, despite some degree of tolerance that may develop . . .Jon Gettman 101
Compared with other licit social drugs, such as alcohol, tobacco,
and caffeine, marijuana does not pose greater risks. One would
wonder, however, if society were given a choice based on current
knowledge, whether these drugs would have been granted their
present status of acceptance. Marijuana may prove to have greater therapeutic potential than these other social drugs, but many
questions still need to be answered.
With respect to marijuana, Califano makes a case for CSA control
of cannabis but not its Schedule I status. According to Hollister’s
observation many, though not all, of those questions have indeed been
answered by research subsequent to the discovery of the cannabinoid
receptor system (see below). It has been long reported that heavy
marijuana use followed by abstinence produces a mild withdrawal
syndrome characterized by irritability and sleeplessness (Hollister
1986; Abood and Martin 1992; Aceto et al. 1996). Corticotropin-Releasing Factor (CRF) is a chemical released in the amygdala associated with stress and negative consequences of withdrawal from alcohol,
cocaine, and opiates (Koob 1996). Rodriguez de Foncesa, Koob, and
colleagues have demonstrated that withdrawal from cannabinoids, induced by use of an antagonist to shut down cannabinoid receptor sites
in animal subjects, results in the production of CRF (Rodriguez de
Foncesa et al. 1998). Billy Martin and colleagues have also used a
cannabinoid receptor agonist to produce withdrawal symptoms in animal subjects (Aceto et al. 1996).
This and other research is discussed in a 1998 article in the Annual
Review of Pharmacology and Toxicology by Christian Felder and Michelle Glass. These authors reach a different conclusion than Califano
above (Felder and Glass 1998, 192):
Much of the political and public objection to the use of 9
THC
or marijuana as a therapy centers around its abuse potential and
the belief by some that it serves as a ‘‘gateway’’ drug leading
users to ‘‘harder’’ drugs of abuse. Many therapeutic drugs have
abuse potential, yet this does not invalidate their role in current
therapies. While there is some preliminary evidence for cannabinoids activating the reward pathways in the brain (Tanda et al.
1998), most investigators have failed to find addictive or reinforcing effects of cannabinoids in animal models. Unlike cocaine
or heroin, cannabinoid agonists produce conditioned place aver-102 JOURNAL OF CANNABIS THERAPEUTICS
sion even at low doses (McGregor et al. 1996; Parker and Gilles
1995) and anxiogenic effects (Onavi et al. 1990). Furthermore,
animals will not self-administer cannabinoids (Harris et al. 1974;
Leite and Carlina 1974; Cocoran and Amit 1974), and a lack of
cross-sensitization between cocaine (McGregor et al. 1995) or
amphetamines (Takahashi and Singer 1981) and cannabinoids
has also been demonstrated.
These statements do not describe a drug with a high potential for
abuse comparable to Schedule I or II drugs such as cocaine and heroin.
The review of Felder and Glass suggests both that marijuana does not
belong in either Schedules I or II, and that it has sufficient therapeutic
potential to provide acceptable medical usage. Their analysis confirms
what was widely known at the time the CSA was passed and elucidated in the wake of the receptor system discovery.
MARIJUANA’S SAFETY FOR USE
During the 1970’s and early 1980’s mechanisms by which marijuana caused its characteristic effects were not yet known. According to
Miles Herkenham of the National Institute of Mental Health (NIMH)
(Herkenham 1992, 19):
Because the cellular and biochemical mechanisms of action of
psychoactive cannabinoids were not understood, neuroscientists
were allowed great breadth to speculate upon the influence that
these compounds might have on the neurons of the brain.
These speculations were often presented as the latest scientific evidence or as what scientists now believe about cannabis. The perception that marijuana is inherently unsafe for use has a historical basis in
this uncertainty about its mechanism of action.
Much speculation was previously based on a theory that cannabis
produced its characteristic effects by way of cell membrane perturbation (Paton 1976; Paton 1979; Harvey and Paton 1985), as if the sticky
characteristics of marijuana resin actually clogged up circuits in the
brain. The persistent yet inconsistent viscosity of cannabinoid resin
hampered the experiments. The characteristics of the emulsifiers and
the potencies of the tested solutions flawed the research designs inJon Gettman 103
ways that made their external validity suspect and difficult to interpret
(Nahas 1984; Martin 1986; Herkenham 1992).
In 1988 Allyn Howlett and her research team made a key breakthrough thanks to the graduate work of William Devane. Using CP55,
940, a high potency synthetic cannabinoid developed by Pfizer, they
were able to establish that cannabinoid effects are mediated by a
previously undiscovered endogenous receptor system in the brain (Devane et al. 1989). In the labs of NIMH Miles Herkenham and his
research teams mapped cannabinoid receptor locations in the human
brain and in several other mammalian species (Herkenham et al.
1990), discovered that tolerance to cannabinoids results from downregulation of receptor sites (Oviedo et al. 1993), and established binding sites in peripheral rat tissues important to understanding cannabinoids’ effects on the immune system (Lynn and Herkenham 1992).
Rather, cannabinoids produce their action like benzodiazepines and
other modern pharmaceuticals that activate or moderate endogenous
receptor systems.
Claims that marijuana is a safe drug in terms of accidental overdose
were also confirmed by ‘‘the paucity of receptors in medullary nuclei
that mediate respiratory and cardiovascular functions’’ (Herkenham et
al. 1990, 1936).
THERAPEUTIC POTENTIAL
The distribution of cannabinoid receptor sites provides explanations
for many of the therapeutic effects claimed by marijuana users. For
example (Herkenham et al. 1990, 1936), ‘‘dense binding in the basal
ganglia and cerebellum suggests cannabinoid involvement in movement control . . . beneficial for some forms of dystonia, tremor, and
spasticity.’’ Yet patients’ anecdotes of these and other therapeutic
effects were dismissed by the Drug Enforcement Administration
(DEA) in 1989 and attributed not to the motor control effects but to the
presumed high potential for abuse of Schedule I drugs (Lawn, 1989).
The potential of cannabinoids to relieve pain has been the basis for
the development of several synthetic cannabinoid analogs (Segal
1987; Johnson and Melvin 1987; Melvin and Johnson 1987). Recent
cannabinoid research findings also report analgesic effects of a cannabinoid agonist on neuropathic pain (Herzberg et al. 1997), relief from
migraine symptoms (Russo 1998), significant antinociception from104 JOURNAL OF CANNABIS THERAPEUTICS
injected cannabinoids (Smith et al. 1998), antioxidant properties useful as neuroprotective agents (Hampson et al. 1998), pain control
resulting from the endogenous cannabinoid anandamide (Calignano et
al. 1998), and activation of a brainstem circuit also involved in opioid
analgesia (Meng et al. 1998; Martin, W.J. et al. 1998).
The contemporary and historical use of cannabis in a therapeutic
and medical context is well documented (Mathre 1997). Contemporary therapeutic use of marijuana is extensively portrayed in Marihuana the Forbidden Medicine by Lester Grinspoon and James Bakalar
(1997), which includes many case histories of patients discredited by
the DEA, and recently vindicated by receptor-related discoveries. The
therapeutic potential of marijuana and cannabinoid drugs has been
recognized for glaucoma, nausea and vomiting, analgesia, spasticity,
multiple sclerosis, AIDS wasting syndrome and several other areas
(IOM 1982; Hollister 1986; Howlett et al. 1990; Grinspoon and Bakalar 1997; Mathre 1997; Taylor 1998; Felder and Glass 1998).
The legislative history used by the Court of Appeals to interpret the
CSA instructs that the ‘‘social, economic, and ecological characteristics of the segments of the population involved’’ be considered, along
with the ‘‘economics of regulation and enforcement attendant to such
a decision.’’ Also, one ‘‘should be aware of the social significance and
impact of such a decision upon those people, especially the young, that
would be affected by it’’ (US Code Cong. Adm News 1970, 4603).
Therapeutic marijuana use is relevant in assessing the intent of some
users and the social costs of prohibition on those that it affects. These
considerations can not be omitted from cost/benefit considerations.
The underlying basis for legislative perpetuation of marijuana prohibition under current US law purports that marijuana is too dangerous
for individuals to use on the basis of informed consent, and that all
marijuana use is the result of risky thrill seeking and drug dependency.
It is now evident not only that a majority of people use marijuana on
the basis of informed consent but that a considerable number use
cannabis in order to utilize its pharmacological effects in therapy for a
diverse number of clinical conditions.
CONCLUSION–POLICY RAMIFICATIONS
The Controlled Substances Act was passed with recognition that
(21 USC 801 (1)):Jon Gettman 105
Many of the drugs included within this [Act] have a useful and
legitimate medical purpose and are necessary to maintain the
health and general welfare of the American people.
Of the many policy issues that stem from the Schedule I status of
cannabis it is medical access that remains a paramount concern for the
public interest. While state law is beginning to provide some protections for medical users of cannabis in several states, medical access is
difficult if not impossible without changes in federal scheduling. One
purpose of the CSA was to balance the public interest in controlling
dangerous drugs with its interest in having the greatest possible access
to drugs with useful and legitimate medical purposes.
Acknowledgement that marijuana is not as dangerous as the law
once claimed may lead to reconsideration of other marijuana-related
laws and policies. It is a betrayal of the public trust to treat cannabis as
if it has the same potential for abuse as heroin and cocaine. The
substantiation of the scientific basis for US marijuana laws can also
enhance the integrity of law enforcement and public health activities
and otherwise contribute to their increased effectiveness.
While pharmacological sources for cannabinoids are available now
and maybe improved in the future, this matter is irrelevant to the legal
issues presented by any individual’s marijuana use. In the case of
medical use of cannabis the primary public policy issue is whether the
state wishes to criminally prosecute individuals whose use of this
substance is for therapeutic reasons and a matter of informed consent.
Science has established a rational basis for such therapeutic use and
clarified marijuana’s abuse potential sufficiently to support the ability
of individual patients to exercise informed consent about its use. The
question is not whether marijuana is the best medicine but whether
people who use it medically should be treated as criminals.
Scientific standards provide the best guide to drug control regardless
of where they may lead in terms of policy outcomes, because they
provide a consistent and reliable basis for rational evaluation and analysis. This was, indeed, the intention of the Congress when it passed the
CSA and designated the DHHS as the preeminent judge of scientific
fact. Congress intended for the scheduling of drugs to remain consistent
with contemporary scientific knowledge. In the case of cannabis, contemporary scientific knowledge does not support its current placement
in Schedule I as a drug with the highest potential for abuse.106 JOURNAL OF CANNABIS THERAPEUTICS
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RECEIVED: 10/05/99
ACCEPTED IN REVISED FORM: 01/10/00