Recreational marijuana is legal in almost half the country, but the Justice Department on Thursday formally moved to reclassify marijuana as a less dangerous drug in a historic shift in generations of U.S. drug policy.
Around nine in ten Americans say marijuana should be legal for medical or recreational use, according to a January 2024 Pew Research Center survey.
An overwhelming majority of U.S. adults (88%) say either that marijuana should be legal for medical use only (32%) or that it should be legal for medical and recreational use (57%). Just 11% say the drug should not be legal in any form. These views have held relatively steady over the past five years.
A proposed rule sent to the federal register recognizes the medical uses of cannabis and acknowledges it has less potential for abuse than some of the nation’s most dangerous drugs. The plan approved by Attorney General Merrick Garland does not legalize marijuana outright for recreational use.
The Drug Enforcement Administration will take public comment on the proposal to move marijuana away from its current classification as a Schedule I drug, alongside heroin and LSD. It moves pot to Schedule III, alongside ketamine and some anabolic steroids.
Attorney General Merrick Garland has submitted to the Federal Register a notice of proposed rulemaking initiating a formal rulemaking process to consider moving marijuana from a Schedule I to Schedule III drug under the Controlled Substances Act (CSA).
The move comes after a recommendation from the federal Health and Human Services Department, which launched a review of the drug’s status at the urging of President Joe Biden in 2022.
Marijuana has been classified as a Schedule I drug since Congress enacted the CSA in 1970.
Since medical cannabis was first legalized in Colorado in 1996, nearly half the country has legalized marijuana for recreational use. Even more states have decriminalized weed or allowed marijuana to be used for medical purposes.
The states where recreational weed is legal are Alaska, Arizona, California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Jersey, New Mexico, New York, Ohio, Oregon, Rhode Island, Vermont, Virginia, and Washington. It is also legal in Washington, D.C.
Recreational use, where legal, is limited to adults 21 years of age and older.
Drugs controlled under Schedule III include products containing less than 90 milligrams of codeine per dosage unit, ketamine, and anabolic steroids.
As the U.S. government moves toward reclassifying marijuana as a less dangerous drug, there may be little immediate impact in the dozen states that have not already legalized cannabis for widespread medical or recreational use by adults.
But advocates for marijuana legalization hope a federal regulatory shift could eventually change the minds — and votes — of some state policymakers who have been reluctant to embrace weed.
“It is very common for a state legislator to tell me, ‘Well, I might be able to support this, but … I’m not going to vote for something that’s illegal under federal law,’” said Matthew Schweich, executive director of the Marijuana Policy Project, which advocates for cannabis legalization.
Although a proposal to reclassify marijuana would not make it legal, “it is a historic and meaningful change at the federal level that I think is going to give many state lawmakers a little less hesitation to support a bill,” Schweich added.
On Oct. 6, 2022, President Joe Biden asked the Attorney General, who heads the Justice Department, and the Secretary of Health and Human Services (HHS) to launch a scientific review of how marijuana is scheduled under federal law. After receiving HHS’s recommendations last August, the Attorney General sought the legal advice of the Justice Department’s Office of Legal Counsel (OLC) on questions relevant to this rulemaking.
In light of HHS’ medical and scientific determinations, and OLC’s legal advice, the Attorney General exercised his authority under the law to initiate the rulemaking process to transfer marijuana to schedule III.
The rescheduling of a controlled substance follows a formal rulemaking procedure that requires notice to the public, and an opportunity for comment and an administrative hearing.
This proposal starts the process, where the Drug Enforcement Administration will gather and consider information and views submitted by the public, in order to make a determination about the appropriate schedule.
During that process, and until a final rule is published, marijuana remains a Schedule I controlled substance.
The notice of proposed rulemaking submitted by the Department can be viewed here, and the OLC memorandum regarding questions related to the potential rescheduling of marijuana can be found here.