Proposed Rule Would Reschedule Marijuana as Less-Dangerous Controlled Substance – Safety & Compliance

As expected, the Drug Enforcement Agency (part of the Justice Department) has moved forward with a proposal to recategorize marijuana as a less-dangerous drug, noting widespread state legalization and currently accepted medical uses.

However, the American Trucking Associations has raised an alarm about whether trucking and other safety-sensitive industries would still be able to drug-test drivers for marijuana if the rule was changed.

The Notice of Proposed Rulemaking kicks off the formal rulemaking process to consider moving marijuana from a Schedule I to a Schedule III drug under the Controlled Substances Act.

Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse.

Schedule III drugs are defined as having a moderate to low potential for physical and psychological dependence. They are available by prescription but are subject to controlled substances regulations.

Lowering the classification would not make recreational use legal but would allow for prescription medical use.

Why Change Marijuana’s Drug Classification?

Marijuana has been classified as a Schedule I drug since Congress passed the Controlled Substances Act in 1970.

DEA and HHS last examined the issue of whether to reschedule marijuana in 2016, when DEA denied two petitions to reschedule marijuana. Given the number of states that have legalized marijuana for medical use since then, the question of whether marijuana has an “accepted medical use” has changed.

In 2022, President Biden asked the attorney general and the Department of Health and Human Services to launch a scientific review of how marijuana is scheduled under federal law. HHS concluded that marijuana does have a currently accepted medical use, and that marijuana’s abuse potential and level of physical or psychological dependence are much lower than other Schedule I substances.

Among other research, the proposal notes that there is some credible scientific support for the use of marijuana in the treatment of chronic pain, anorexia related to a medical condition, and nausea and vomiting.

First Step in the Regulatory Rulemaking Process

Similar to the regulatory process we’re familiar with in trucking from agencies such as the Federal Motor Carrier Safety Administration and the National Highway Traffic Safety Administration, rescheduling a controlled substance follows a formal rulemaking procedure. It requires notice to the public, an opportunity for comment, and an administrative hearing.

After a notice of rulemaking proceeding is published, notes the DEA in the NPRM, HHS’s scientific and medical determinations are accorded “significant deference” through the rest of the rulemaking process.

During the rulemaking process, and until a final rule is published, marijuana remains a schedule I controlled substance.

DOJ is soliciting comments on this proposal, which must be submitted by 30 days after publication in the Federal Register.

What About DOT Drug Testing?

How recategorizing marijuana as a Class III drug would affect the Department of Transportation’s drug-testing regulations for safety-sensitive jobs such as truck driving is not yet clear.

The issue of impaired driving is barely touched on in the DOJ’s proposal. In looking at the public safety issue, the DEA notes that studies have examined the risk associated with marijuana use and driving.

For instance, Rocky Mountain High Intensity Drug Trafficking Area reported in a publication that traffic deaths in Colorado (the first state to legalize recreational marijuana, 10 years ago) in which drivers tested positive for marijuana more than doubled, from 55 in 2013 to 131 in 2020. However, other evidence in the same report, it said, suggests that DUI citations involving marijuana have grown at a rate similar to the rate for citations involving other drugs.

ATA Warns of Negative Consequences for Highway Safety

The American Trucking Associations wrote a letter to Attorney General Merrick Garland, Health and Human Services Secretary Xavier Becerra and Transportation Secretary Pete Buttigieg about the potential negative consequences of marijuana reclassification for highway safety and safety-sensitive industries

ATA said it is alarmed by the possibility that this reclassification could prohibit certain industries from screening for marijuana use by workers performing safety-sensitive roles unless there is an explicit allowance for continued employer marijuana testing of safety-sensitive workers.

Reclassifying marijuana, the association said, “could altogether eliminate employers’ ability to conduct and report marijuana testing of DOT-designated ‘safety-sensitive’ workers — including commercial truck and bus drivers, pilots, train operators, and other transportation workers — that are currently subject to DOT drug and alcohol testing regulations,” wrote Dan Horvath, ATA senior VP of regulatory affairs and safety policy.

ATA: Regulation Could Keep Trucking Companies from Testing for Marijuana

“Current DOT drug and alcohol testing requirements are governed — and therefore limited in their testing authority — by the Department of Health and Human Services Mandatory Guidelines for Federal Workplace Drug Testing Programs, which allow regulated employers to test only for those drugs listed in Schedule I or II of the CSA.

“Therefore, without additional action, deregulation or rescheduling of marijuana would have the likely consequence of precluding testing for all professional drivers and transportation workers as part of the DOT testing program.”

As of March 2024, ATA said, marijuana represented around 60 percent of all positive employer drug tests of regulated commercial motor vehicle drivers reported to the Federal Motor Carrier Safety Administration’s Drug and Alcohol Clearinghouse.

“While ATA acknowledges the prevalence and increasing societal acceptance of marijuana for medical and recreational purposes, absent an impairment standard, testing for marijuana use by safety-sensitive employees must remain in place.”

ATA’s letter noted that last year, the National Transportation Safety Board released research showing that marijuana and alcohol remain the most-detected drugs in impaired driving crashes resulting in serious or fatal injuries.

A separate study published in the National Journal of Medicine revealed that state-level marijuana legalization was associated with a 6.5% increase in injury crash rates and a 2.3% increase in fatal crash rates, according to ATA.

No Test for Marijuana Impairment

Right now, there is no widely accepted, accurate and reliable standard and test for determining impairment — rather than intoxication — from marijuana consumption (like the blood alcohol content measure used to detect alcohol impairment).

“While perceived intoxication may only last a few hours, cognitive impairment from marijuana — impacting core motor skills, coordination, perception, and peripheral vision that are critical to safe, focused driving — has been found to last up to 24 hours in some instances,” ATA said.

Rescheduling Would Not Legalize Marijuana

The proposal points out that if the transfer to Schedule III is finalized, the regulatory controls applicable to Schedule III controlled substances would apply, as appropriate, along with existing marijuana-specific requirements and any additional controls that might be implemented, including those that might be implemented to meet U.S. treaty obligations.

If marijuana is transferred into schedule III, the manufacture, distribution, dispensing, and possession of marijuana would remain subject to the applicable criminal prohibitions of the Controlled Substances Act.

Any drugs containing a substance within the CSA’s definition of “marijuana” would also remain subject to the applicable prohibitions in the Federal Food, Drug, and Cosmetic Act.