DEA is One Step Closer to Reclassifying Marijuana

Proposed rule would move marijuana to Schedule III

The Department of Justice is moving forward to reclassify marijuana as a less dangerous drug.

A notice of proposed rulemaking was submitted by the Drug Enforcement Administration (DEA) to change marijuana’s classification from Schedule I to Schedule III under the Controlled Substances Act (CSA). 

The Department of Health and Human Services currently holds a view that marijuana has an accepted medical use and less potential for abuse than the drugs in Schedules I and II.

Once the proposed rulemaking is published in the Federal Register, stakeholders will have 60 days to submit commits for DEA’s consideration. However, marijuana remains on Schedule I during the rulemaking process. It will not be reclassified prior to a final rule published by DEA.

If DEA reclassifies marijuana as expected, it is unknown at this time how this change will affect 49 CFR Part 40, drug testing procedures for all modes under the Department of Transportation.

What are schedules of controlled substances?

The DEA classifies drugs in its regulations (21 CFR §§11308.11 through 1308.15) based on:

• Whether the drug or substance has a currently accepted medical use in treatment in the United States, and
• The drug or substance’s: 
• Relative abuse potential, and
• Likelihood of causing dependence when abused.

Schedule I, the current placement for marijuana, is defined as having:

• No currently acceptable medical use,
• A lack of accepted safety for use under medical supervision, and
• A high potential for abuse.

Schedule II is identified as having a high potential for abuse, leading to severe psychological or physical dependence.

Schedule III, the proposed classification of marijuana, is described as having a potential for abuse less than substances in Schedules I or II, and abuse may lead to moderate or low physical dependence or high psychological dependence.

DEA’s two remaining classifications include:

• Schedule IV: Substances with a low potential for abuse relative to Schedule III, and
• Schedule V: Substances with a low potential for abuse relative to Schedule IV and contain limited quantities of certain narcotics.

On the other hand, the use of marijuana among truck drivers is a growing concern in the industry. Since the Federal Motor Carrier Safety Administration (FMCSA) Drug & Alcohol Clearinghouse began tracking data in January 2020, marijuana has been the most common substance for which truck drivers test positive. 

As of early 2023, nearly 110,856 truck drivers had tested positive for marijuana, with about 41,000 of these cases occurring in 2022 alone​ (Politico)​​ (Transport Topics)​.

This increase in positive tests for marijuana is significant, with a 32% rise from 2021 to 2022 and a 9.2% increase in the first quarter of 2023. This trend is exacerbated by the fact that many drivers who test positive do not complete the required return-to-work process, leading to a substantial number of drivers being sidelined indefinitely.

As of early 2023, over 97,000 drivers were in prohibited status due to not starting or completing this process​ (Transport Topics)​​

Despite the increasing legalization of marijuana in many states, federal regulations still prohibit its use among commercial drivers. This discrepancy creates challenges for drivers and the trucking industry, as drivers can face penalties and job loss for marijuana use, even in states where it is legal​ (Politico)​.

The situation has sparked debate within the industry about the need for more accurate testing methods that differentiate between recent use and past exposure, as current tests can detect marijuana in the system long after its effects have worn off​ (Transport Topics)​.

Overall, while exact numbers of current users are difficult to pinpoint, the available data indicates a significant and growing impact of marijuana use among truck drivers, posing challenges for both drivers and employers in maintaining compliance with federal regulations.

So how does one reclassify a drug, especially knowing that people will abuse the drug and have NO WAY to determine what degree that they are under the influence of that drug.

It only makes sense to set the limits first before you make it more accessible to the public. Just as we have limits for alcohol, we MUST have limits for marijuana. It’s just plain COMMON SENCE.