Between A Rock And A Hard Place: Rescheduling And The UN Single Convention On Narcotics

• Published date: 07 September 2023
• Subject Matter: Food, Drugs, Healthcare, Life Sciences, Cannabis & Hemp, Food and Drugs Law
• Law Firm: Foley Hoag LLP
• Author: Jeffrey Schultz and Jesse Alderman

Will the United States Attorney General, via the U.S. Drug Enforcement Administration ("DEA") follow the recent recommendation of the U.S. Department of Health and Human Services ("HHS") to reschedule cannabis to Schedule III? The plain language in the United States Controlled Substances Act (the "CSA") compels DEA to do so, but there is speculation that the DEA could disregard the last week's historic HHS Recommendation because of the Attorney General's limited duty under Section 811(d)(1) of the CSA.

Section 811(d)(1) of the CSA requires the Attorney General to make scheduling decisions, among other things, that carry out the country's obligations under the UN Single Convention on Narcotics of 1961, to which the United States is signatory (the "UN Single Convention"). Like the CSA, the UN Single Convention establishes several classifications or "schedules" of drugs and substances, all of which generally require member nations to tightly control cannabis, most similarly to the CSA's Schedule I or Schedule II.

Drugs and substances that are subject to international treaties are re- and de-scheduled pursuant to the process established in Section 811(d), including cannabis. Section 811(d)(1) of the CSA states that "the Attorney General shall issue an order controlling such drug under the schedule he deems most appropriate to carry out such [international treaty] obligations, without regard to the findings prescribed by subsection (a) of this section or section 812(b) of this title and without regard to the procedures prescribed by subsections (a) and (b) of this section".

Several commentators have largely dismissed concerns regarding the Attorney General's ability (via the DEA) to reschedule cannabis below Schedule II. After all, we've already violated it through our permissive approach to states' rights to establish and regulate their own medical and adult-use markets. Moreover, several signatories to the UN Single Convention (including Canada, Mexico, Uruguay, Luxembourg, South Africa, Thailand, and others) have legalized adult use cannabis or have otherwise decriminalized possession and/or home cultivation in clear violation of the Single Convention. After all, the Single Convention seems to lack any enforcement mechanism. So, it's no big deal, right? RIGHT?

Maybe so, but the issue is tricky: treaty compliance is not the issue. At least not the primary issue. The issue is compliance with domestic law. The key question is whether the Attorney General, via...