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Question: Can the Attorney General change or reschedule marijuana cannabis under the CSA?

Posted by David Holland | Apr 25, 2021 | 0 Comments



            The CSA allows the Attorney General to reschedule a drug if he finds that it does not meet the criteria for the schedule to which it has been assigned. 21 U.S.C. § 811(a); See also, Alliance for Cannabis Therapeutics v. Drug Enforcement Admin. 15 F.3d 1131, 1133, (C.A.D.C.,1994); Kuromiya v. U.S., 37 F.Supp.2d 717, 722 (E.D.Pa.,1999)(“There are provisions by which the Attorney General may change the designation of a particular controlled substance, either to move it up, down, or off of the schedules. See 21 U.S.C. § 811").

“In enacting the statutory classifications of controlled substances, Congress expressly provided that its initial designation of the schedules would remain in effect “unless and until amended pursuant to section 811 of [the CSA].” Olson v. Holder, 210 F.Supp.2d 985, 991-992 (S.D. Iowa, 2009), citing, U.S. v. Schrock, 855 F.2d 327, 331 (6th Cir.1988); See also, Nat'l Organization for Reform of Marijuana Laws (NORML) v. Bell, 488 F.Supp. 123, 141 (D.D.C.1980) (“In making the initial determination, Congress placed marijuana in Schedule I. The clear meaning of section 812(c) is that Congress intended marijuana to remain in Schedule I until such time as it might be reclassified by the Attorney General on the basis of more complete scientific information about the drug.”)

21 U.S.C. 903 – Attorney General has the ability to reassert the supremacy of the controlled substances act by finding that there has been a “positive conflict” between state laws that contravene or contradict the supremacy of the federal Controlled Substances Act.

            To date, with 38 states having legalized cannabis either for medical marijuana or adult use programs, not one U.S. Attorney General has EVER found a positive conflict between the federal CSA prohibition of marijuana cannabis use for any reason despite the vast majority of the states determining otherwise and implementing legislation to legalize it.

About the Author

David Holland

As Executive Director of Empire State NORML and President of the New York City Cannabis Industry Association, David has been a leading advocate in the cannabis space for over 20 years. He has represented clients in marijuana related proceedings everywhere from traffic court to the United States Supreme Court, and he helped obtain clemency for five elderly prisoners servicing life without parole for marijuana. David also handles complex civil and criminal litigation in other areas including employment, First Amendment, and business.


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