The Drug Enforcement Administration (DEA) has announced its decision: It will keep marijuana in the same legal, regulatory category as heroin — schedule 1.
To many people, this is outrageous. Obviously, marijuana is nowhere as dangerous as heroin. And it's not more dangerous than schedule 2 drugs like cocaine and meth. So why the hell is pot schedule 1?
But the classification doesn't mean that the federal government thinks of marijuana and heroin as equally dangerous drugs. The schedule reflects a more complicated system — one that accounts for a drug's medical value as much as a drug's potential for abuse.
A harsh schedule also does not mean a drug is totally illegal. Criminal laws, while guided by the scheduling system, often take other factors into account. For pot, they do — leaving it as one of the less-punished illicit drugs at the federal level, even though it's schedule 1. And opioid painkillers, as one example, are schedule 2 but legal for medical purposes.
Still, a drug's schedule is an important policy guide. A stricter schedule lets the DEA more stringently limit access to a drug and its supply, which can make a drug more difficult to research — as has happened for marijuana, limiting researchers' ability to study the drug for its medical value. (As a result, advocacy and medical groups have long contended that pot's schedule is out of step with the available scientific evidence.)
So what is the scheduling system, how does it work, and what would it take to reschedule a drug? Here's what you need to know.
Under the Controlled Substances Act, the federal government — which has largely relegated the regulation of drugs to the Drug Enforcement Administration (DEA) — puts each drug into a classification, known as a schedule, based on its medical value and potential for abuse.
To initiate a schedule, the DEA first asks if a drug can be abused. If the answer is yes, then it's put on a schedule. If no, the drug is left out. After that, the drug's medical value and relative potential for abuse are evaluated to decide where on the scale it lands.
Congress did not clearly define abuse under the Controlled Substances Act
The two big issues, then, are a drug's potential for abuse and its medical value. Congress did not clearly define abuse under the Controlled Substances Act. But for federal agencies responsible for classifying drugs, abuse is when individuals take a substance recreationally and develop personal health hazards or pose other risks to society as a whole. To find medical value, a drug must have large-scale clinical trials to back it up — similar to what the Food and Drug Administration (FDA) would expect from any other drug entering the market.
Schedule 1 drugs have no medical value and high potential for abuse, while schedule 2 through 5 substances all have some medical value but differ in ranking depending on their potential for abuse (from high to low).
Some examples of the drugs that are on each schedule:
In general, schedule 1 and 2 drugs have the most regulatory restrictions on research, supply, and access, and schedule 5 drugs have the least.
To many people, one of the more bewildering aspects of the scheduling system is that marijuana is schedule 1 — the same category as heroin — while cocaine and meth are schedule 2.
But that doesn't necessarily mean the federal government views marijuana and heroin as equally dangerous drugs, or that it considers marijuana to be more dangerous than meth or cocaine. Schedule 1 and 2 drugs are both described as having 'a high potential for abuse' — a vague description that doesn't rank drugs in the two categories as equal or different.
The big distinction between schedule 1 and 2 substances, instead, is whether the federal government thinks a drug has medical value. The DEA says schedule 2 substances have some medical value and schedule 1 substances do not, so the latter receive more regulatory scrutiny even though they may not be more dangerous.
The war on drugs was initiated when much of the nation was in hysterics about what drugs would do to the moral fabric of the country
It may be helpful to think of the scheduling system as made up of two distinct groups: nonmedical and medical. The nonmedical group comprises the schedule 1 drugs, which are considered to have no medical value and high potential for abuse. The medical group comprises the schedule 2 to 5 drugs, which have some medical value and are numerically ranked based on abuse potential.
There are some cultural considerations to the scheduling system, as well. The war on drugs was initiated at a time when much of the nation was in hysterics about what drugs like marijuana and LSD would do to the moral fabric of the country. Marijuana was seen as dangerous not necessarily because of its direct health effects, but because of the perception — partially rooted in racial prejudices — that pot makes people immoral, lazy, and even violent. This perception persists among many supporters of the war on drugs to this day, and it's still reflected in America's drug scheduling.
Beyond the scheduling system, the federal government imposes criminal trafficking penalties for drugs that don't always align with their scheduling. For instance, marijuana trafficking is generally punished less severely than cocaine. And state governments can set up their own criminal penalties and schedules for drugs as well.
A drug's schedule sets the groundwork for the federal regulation of a controlled substance.
Schedule 1 and 2 drugs face the strictest regulations. Schedule 1 drugs are effectively illegal for anything outside of research, and schedule 2 drugs can be used for limited medical purposes with the DEA's approval — for example, through a license for prescriptions.
The DEA even sets strict limits on the production of schedule 1 and 2 drugs, although the limits vary from drug to drug. Only one place in the US — a University of Mississippi farm — is currently allowed to grow marijuana under federal regulations, and the pot is limited to research purposes. By comparison, several private companies produce oxycodone, a schedule 2 substance, and use the drug for prescription painkillers.
A drug's schedule can interfere with state laws
A drug's schedule can interfere with state laws. Marijuana's schedule 1 status is one reason banks are reluctant to open accounts for pot shops and growers in Colorado and Washington, even though the businesses are legal under state law.
Federal tax law also prohibits businesses from deducting many expenses related to the trafficking of schedule 1 and 2 drugs, which can cause state-legal marijuana businesses' effective income tax rates to soar as high as 90 percent.
The DEA sometimes uses marijuana's classification to pressure physicians, hospitals, and pharmacies into not working with medical marijuana operations that are compliant with state law. If these medical providers don't comply, the DEA threatens to take back licensing that lets doctors prescribe drugs, such as prescription painkillers with oxycodone, that contain scheduled substances.
Congress could pass a law that changes or restricts a drug's schedule. But Congress mostly leaves scheduling to federal agencies like the DEA. (One exception: Congress previously passed the Hillory J. Farias and Samantha Reid Date-Rape Prevention Act of 2000 and added gamma hydroxybutyric acid, a date rape drug, to the scheduling system.)
The US attorney general can also initiate a review process that would look at the available evidence and potentially change a drug's schedule. The review includes several steps:
Although very rigorous, this process has been successfully carried out in the past. For example, the DEA in 2014 announced it had rescheduled hydrocodone combination products, or opioid-based prescription painkillers, from schedule 3 to schedule 2.
'Almost 7 million Americans abuse controlled-substance prescription medications, including opioid painkillers, resulting in more deaths from prescription drug overdoses than auto accidents,' former DEA head Michele Leonhart said in a 2014 statement. 'Today's action recognizes that these products are some of the most addictive and potentially dangerous prescription medications available.'
It's possible, but it's much more difficult than simply rescheduling a drug.
One big hurdle is international treaties. The US is party to international agreements that effectively require some drugs, including marijuana, to remain within the scheduling system — and possibly schedule 1 or 2.
Proving that a drug has no potential for abuse is also very difficult, if not impossible. An American Scientist analysis, for instance, found even relatively safe marijuana has some potential for dependence; it's less addictive than heroin, meth, cocaine, nicotine, and alcohol, but more addictive than hallucinogens such as LSD, which doesn't cause much, if any, dependence. And since pot is widely used recreationally, that makes it a sure lock-in for 'high potential for abuse.'
The two major recreational drugs not on the scheduling system — alcohol and tobacco — required a specific exemption in the Controlled Substances Act. Mark Kleiman, a drug policy expert, argues both would be marked schedule 1 if they were evaluated today, since they're widely used recreationally, addictive, detrimental to one's health and society, and deadly.
When marijuana's classification comes under review, its schedule 1 status is consistently maintained due to insufficient scientific evidence of its medical value.
Specifically, the scientific evidence available for marijuana doesn't pass the threshold required by federal agencies to acknowledge a drug's potential as medicine. No studies proved the drug's medical efficacy in controlled, large-scale clinical environments. No studies established adequate safety protocols for marijuana. And marijuana's full chemical structure has never been characterized and analyzed.
There have been some studies showing marijuana has medical benefits, particularly for pain and muscle stiffness. But these studies haven’t been large enough to meet the threshold the DEA and other federal agencies, such as the FDA, require to prove a drug has medical value — by proving its worth in controlled, large-scale clinical trials.
Changing marijuana's schedule is a bit of a Catch-22
But one reason there isn't enough scientific evidence to change marijuana's schedule 1 status might be, in fact, the drug's schedule 1 status. The DEA restricts how much marijuana can go to research. To obtain legal marijuana supplies for studies, researchers must get their studies approved by HHS, the FDA, and the DEA.
Changing marijuana's schedule, in other words, is a bit of a Catch-22. There needs to be a certain level of scientific research that proves marijuana has medical value, but the federal government's restrictions make it difficult to conduct that research.
To address those issues, the DEA hopes to allow much more research into pot in other ways. For one, it’s increased the amount of pot grown for research over the past few years, and it plans to continue doing so. Crucially, it also plans to let more people and facilities grow marijuana for studies — aside from University of Mississippi, the only federally legal grower right now.
That could significantly open up research access to pot — including potentially higher-quality marijuana and different strains of the drug, which the University of Mississippi doesn’t currently meet demands for. But the effects of the changes remain to be seen.
While a reclassification would be a symbolic win for legalization advocates, Kleiman says it wouldn't have much practical effect. Schedule 2 substances typically require a prescription to be distributed, and the state-legal marijuana dispensaries and retail outlets don’t work through traditional prescriptions (they distribute 'recommendations' for medical marijuana) — so even rescheduling may not open up access. (Cocaine and meth are schedule 2, and they’re definitely not easily legally available, after all.)
Still, if the federal government acknowledged pot’s medical value through a schedule 2 classification, advocates hoped it would make federal agencies far more receptive to paying for and approving medical research into pot. But the DEA hopes its other steps will unlock far more research instead.
There would be some effects on policy, such as allowing state-legal marijuana business to deduct certain taxes, if marijuana was reclassified to schedule 3 or lower. But that’s extremely unlikely: Schedule 3 and lower drugs need to have some medical value and not meet criteria for 'high potential for abuse.' Since marijuana is widely used recreationally, it’s a lock-in for 'high potential for abuse,' keeping it at schedule 1 or 2.
Kleiman has proposed moving to a scheduling system that looks only at a drug's potential for abuse without considering whether it has medical value. The regime would control all intoxicating drugs, including alcohol, to try to prevent problematic drug use, based on the scientific definition of drug abuse disorders. Whether a drug has medical value would be addressed by a different set of policies focused on medical drug production and health care.
'Whether something is medication is a separate set of issues,' Kleiman said. His ideal system 'would classify drugs by dangerousness, with a penalties for dealing ramping up with more dangerous drugs.'
'The current prohibition system has generated many bad side effects'
One of the problems with the current scheduling system, Kleiman argued, is it tries to lump drugs with completely different effects and risks into a few categories. 'There are lots of different drugs in the world, and we have to figure out what to do with each of them,' Kleiman said. 'Some categorization is helpful, but it's not as if the drugs neatly break down.'
Kleiman, who supports decriminalizing illicit drug use and legalizing marijuana, said an ideal replacement to the current scheduling system would also come with less stringent criminal penalties.
'The current prohibition system has generated many bad side effects,' Kleiman said. 'We should try to develop new policies that duplicate the success of preventing the development of more drugs that are as big a problem as alcohol, but with fewer of the costs.'
This is the list of Schedule II drugs as defined by the United StatesControlled Substances Act.[1]The following findings are required for drugs to be placed in this schedule:[2]
The complete list of Schedule II drugs follows.[1] The Administrative Controlled Substances Code Number for each drug is included.
ACSCN | Class | Drug |
---|---|---|
9050 | opiate | Codeine |
9334 | opiate | Dihydroetorphine |
9190 | opiate | Ethylmorphine |
9059 | opiate | Etorphine hydrochloride |
9640 | opiate | Granulated opium |
9193 | opiate | Hydrocodone |
9150 | opiate | Hydromorphone |
9260 | opiate | Metopon |
9300 | opiate | Morphine |
9610 | opiate | Opium extracts |
9620 | opiate | Opium fluid |
9330 | opiate | Oripavine |
9143 | opiate | Oxycodone |
9652 | opiate | Oxymorphone |
9639 | opiate | Powdered opium |
9600 | opiate | Raw opium |
9333 | opiate | Thebaine |
9630 | opiate | Tincture of opium |
opiate | Opium poppy and poppy straw | |
9040 | stimulant | Coca, leaves and any salt, compound, derivative or preparation of coca leaves |
9041 | stimulant | Cocaine, and its salts, isomers, derivatives and salts of isomers and derivatives |
9180 | stimulant | Ecgonine, and its salts, isomers, derivatives and salts of isomers and derivatives |
9670 | opiate | Concentrate of poppy straw (the crude extract of poppy straw in either liquid, solid or powder form which contains the phenanthrene alkaloids of the opium poppy) |
9737 | opioid | Alfentanil |
9010 | opiate | Alphaprodine |
9020 | opioid | Anileridine |
9800 | opiate | Bezitramide |
9273 | opioid | Bulk dextropropoxyphene (non-dosage forms) |
9743 | opioid | Carfentanil |
9120 | opiate | Dihydrocodeine |
9170 | opioid | Diphenoxylate |
9801 | opioid | Fentanyl |
9226 | opioid | Isomethadone |
9648 | opiate | Levo-alphacetylmethadol |
9210 | opiate | Levomethorphan |
9220 | opiate | Levorphanol |
9240 | opioid | Metazocine |
9250 | opioid | Methadone |
9254 | opiate intermediate | Methadone intermediate: 4-cyano-2-dimethylamino-4,4-diphenyl butane |
9802 | opiate intermediate | Moramide intermediate: 2-methyl-3-morpholino-1,1-diphenylpropane-carboxylic acid |
9230 | opioid | Pethidine (meperidine) |
9232 | opiate intermediate | Pethidine intermediate A: 4-cyano-1-methyl-4-phenylpiperidine |
9233 | opiate intermediate | Pethidine intermediate B, ethyl-4-phenylpiperidine-4-carboxylate |
9234 | opiate intermediate | Pethidine intermediate C, 1-methyl-4-phenylpiperidine-4-carboxylic acid |
9715 | opiate | Phenazocine |
9730 | opiate | Piminodine |
9732 | opiate | Racemethorphan |
9733 | opiate | Racemorphan |
9739 | opiate | Remifentanil |
9740 | opiate | Sufentanil |
9780 | opiate | Tapentadol |
1100 | stimulant | Amphetamine, its salts, optical isomers, and salts of its optical isomers (Adderall) |
1105 | stimulant | Methamphetamine, its salts, isomers, and salts of its isomers |
1631 | stimulant | Phenmetrazine and its salts |
1724 | stimulant | Methylphenidate (Ritalin, Concerta, etc.) |
1205 | stimulant | Lisdexamfetamine (Vyvanse), its salts, isomers, and salts of its isomers |
2125 | depressant | Amobarbital |
2550 | depressant | Glutethimide |
2270 | depressant | Pentobarbital |
7471 | depressant | Phencyclidine |
2315 | depressant | Secobarbital |
7379 | hallucinogen | Nabilone |
8501 | precursor | Phenylacetone |
7460 | precursor | 1-phenylcyclohexylamine |
8603 | precursor | 1-piperidinocyclohexanecarbonitrile (PCC) |
8333 | precursor | 4-anilino-N-phenethyl-4-piperidine (ANPP) |
Long title | An Act to amend the Public Health Service Act and other laws to provide increased research into, and prevention of, drug abuse and drug dependence; to provide for treatment and rehabilitation of drug abusers and drug dependent persons; and to strengthen existing law enforcement authority in the field of drug abuse. |
---|---|
Acronyms(colloquial) | CSA |
Enacted by | the 91st United States Congress |
Effective | May 1, 1971 |
Citations | |
Public law | 91-513 |
Statutes at Large | 84 Stat.1236a.k.a. 84 Stat. 1242 |
Codification | |
Titles amended | 21 U.S.C.: Food and Drugs |
U.S.C. sections created | 21 U.S.C.ch. 13 § 801 et seq. |
Legislative history | |
| |
Major amendments | |
Hillory J. Farias and Samantha Reid Date-Rape Prevention Act of 2000 | |
United States Supreme Court cases | |
United States v. Oakland Cannabis Buyers' Cooperative Gonzales v. Raich McFadden v. United States |
The Controlled Substances Act (CSA) is the statute establishing federalU.S. drug policy under which the manufacture, importation, possession, use, and distribution of certain substances is regulated. It was passed by the 91st United States Congress as Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970 and signed into law by President Richard Nixon.[1] The Act also served as the national implementing legislation for the Single Convention on Narcotic Drugs.
The legislation created five schedules (classifications), with varying qualifications for a substance to be included in each. Two federal agencies, the Drug Enforcement Administration (DEA) and the Food and Drug Administration (FDA), determine which substances are added to or removed from the various schedules, although the statute passed by Congress created the initial listing. Congress has sometimes scheduled other substances through legislation such as the Hillory J. Farias and Samantha Reid Date-Rape Prevention Act of 2000, which placed gamma hydroxybutyrate (GHB) in Schedule I and sodium oxybate (the isolated sodium salt in GHB) in Schedule III.[2][3] Classification decisions are required to be made on criteria including potential for abuse (an undefined term),[4][5] currently accepted medical use in treatment in the United States, and international treaties.
Regulation of therapeutic goods in the United States |
---|
Prescription drugs Over-the-counter drugs |
Federal Food, Drug, and Cosmetic Act Comprehensive Drug Abuse Prevention and Control Act of 1970 Controlled Substances Act Prescription Drug Marketing Act Drug Price Competition and Patent Term Restoration Act Hatch-Waxman exemption Marihuana Tax Act |
Department of Health and Human Services Food and Drug Administration Department of Justice Drug Enforcement Administration |
Drug discovery Drug design Drug development New drug application Investigational new drug Clinical trial (Phase I, II, III, IV) Randomized controlled trial Pharmacovigilance Abbreviated New Drug Application Fast track approval Off-label use |
International Conference on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use Uppsala Monitoring Centre World Health Organization Council for International Organizations of Medical Sciences Single Convention on Narcotic Drugs |
Institute of Medicine Research on Adverse Drug events And Reports NORML |
The nation first outlawed addictive drugs in the early 1900s and the International Opium Convention helped lead international agreements regulating trade.[6][7][8] The Food and Drugs Act of 1906 was the beginning of over 200 laws concerning public health and consumer protections.[9] Others were the Federal Food, Drug, and Cosmetic Act (1938), and the Kefauver Harris Amendment of 1962.[10][11]
In 1969, PresidentRichard Nixon announced that the Attorney General, John N. Mitchell, was preparing a comprehensive new measure to more effectively meet the narcotic and dangerous drug problems at the federal level by combining all existing federal laws into a single new statute. With the help of White House Counsel head, John Dean; the Executive Director of the Shafer Commission, Michael Sonnenreich; and the Director of the BNDD, John Ingersoll creating and writing the legislation, Mitchell was able to present Nixon with the bill.[12]
The CSA not only combined existing federal drug laws and expanded their scope, but it also changed the nature of federal drug law policies and expanded Federal law enforcement pertaining to controlled substances.Title II, Part F of the Comprehensive Drug Abuse Prevention and Control Act of 1970 established the National Commission on Marijuana and Drug Abuse[13]—known as the Shafer Commission after its chairman, Raymond P. Shafer—to study cannabis abuse in the United States.[14] During his presentation of the commission's First Report to Congress, Sonnenreich and Shafer recommended the decriminalization of marijuana in small amounts, with Shafer stating,
[T]he criminal law is too harsh a tool to apply to personal possession even in the effort to discourage use. It implies an overwhelming indictment of the behavior which we believe is not appropriate. The actual and potential harm of use of the drug is not great enough to justify intrusion by the criminal law into private behavior, a step which our society takes only with the greatest reluctance.[15]
Rufus King notes that this stratagem was similar to that used by Harry Anslinger when he consolidated the previous anti-drug treaties into the Single Convention and took the opportunity to add new provisions that otherwise might have been unpalatable to the international community.[16] According to David T. Courtwright, 'the Act was part of an omnibus reform package designed to rationalize, and in some respects to liberalize, American drug policy.' (Courtwright noted that the Act became, not libertarian, but instead repressionistic to the point of tyrannical, in its intent.) It eliminated mandatory minimum sentences and provided support for drug treatment and research.[17] King notes that the rehabilitation clauses were added as a compromise to Senator Jim Hughes, who favored a moderate approach. The bill, as introduced by Senator Everett Dirksen, ran to 91 pages. While it was being drafted, the Uniform Controlled Substances Act, to be passed by state legislatures, was also being drafted by the Department of Justice; its wording closely mirrored the Controlled Substances Act.[16]
Since its enactment in 1970, the Act has been amended numerous times:
The Controlled Substances Act consists of 2 subchapters. Subchapter I defines Schedules I-V, lists chemicals used in the manufacture of controlled substances, and differentiates lawful and unlawful manufacturing, distribution, and possession of controlled substances, including possession of Schedule I drugs for personal use; this subchapter also specifies the dollar amounts of fines and durations of prison terms for violations. Subchapter II describes the laws for exportation and importation of controlled substances, again specifying fines and prison terms for violations.[24]
The Drug Enforcement Administration was established in 1973, combining the Bureau of Narcotics and Dangerous Drugs (BNDD) and Customs' drug agents.[25] Proceedings to add, delete, or change the schedule of a drug or other substance may be initiated by the DEA, the Department of Health and Human Services (HHS), or by petition from any interested party, including the manufacturer of a drug, a medical society or association, a pharmacy association, a public interest group concerned with drug abuse, a state or local government agency, or an individual citizen. When a petition is received by the DEA, the agency begins its own investigation of the drug.
The DEA also may begin an investigation of a drug at any time based upon information received from laboratories, state and local law enforcement and regulatory agencies, or other sources of information. Once the DEA has collected the necessary data, the Deputy Administrator of DEA,[26]:42220 requests from HHS a scientific and medical evaluation and recommendation as to whether the drug or other substance should be controlled or removed from control. This request is sent to the Assistant Secretary of Health of HHS. Then, HHS solicits information from the Commissioner of the Food and Drug Administration and evaluations and recommendations from the National Institute on Drug Abuse and, on occasion, from the scientific and medical community at large. The Assistant Secretary, by authority of the Secretary, compiles the information and transmits back to the DEA a medical and scientific evaluation regarding the drug or other substance, a recommendation as to whether the drug should be controlled, and in what schedule it should be placed.
The HHS recommendation on scheduling is binding to the extent that if HHS recommends, based on its medical and scientific evaluation, that the substance not be controlled, then the DEA may not control the substance. Once the DEA has received the scientific and medical evaluation from HHS, the DEA Administrator evaluates all available data and makes a final decision whether to propose that a drug or other substance be controlled and into which schedule it should be placed. Under certain circumstances, the Government may temporarily schedule[27] a drug without following the normal procedure. An example is when international treaties require control of a substance. In addition, 21 U.S.C.§ 811(h) allows the Attorney General to temporarily place a substance in Schedule I 'to avoid an imminent hazard to the public safety'. Thirty days' notice is required before the order can be issued, and the scheduling expires after a year; however, the period may be extended six months if rulemaking proceedings to permanently schedule the drug are in progress. In any case, once these proceedings are complete, the temporary order is automatically vacated. Unlike ordinary scheduling proceedings, such temporary orders are not subject to judicial review.
The CSA also creates a closed system of distribution[28] for those authorized to handle controlled substances. The cornerstone of this system is the registration of all those authorized by the DEA to handle controlled substances. All individuals and firms that are registered are required to maintain complete and accurate inventories and records of all transactions involving controlled substances, as well as security for the storage of controlled substances.
The Congressional findings in 21 USC §§ 801(7), 801a(2), and 801a(3) state that a major purpose of the CSA is to 'enable the United States to meet all of its obligations' under international treaties. The CSA bears many resemblances to these Conventions. Both the CSA and the treaties set out a system for classifying controlled substances in several schedules in accordance with the binding scientific and medical findings of a public health authority. Under 21 U.S.C.§ 811 of the CSA, that authority is the Secretary of Health and Human Services (HHS). Under Article 3 of the Single Convention and Article 2 of the Convention on Psychotropic Substances, the World Health Organization is that authority.
The domestic and international legal nature of these treaty obligations must be considered in light of the supremacy of the United States Constitution over treaties or acts and the equality of treaties and Congressional acts. In Reid v. Covert the Supreme Court of the United States addressed both these issues directly and clearly holding:
[N]o agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.
Article VI, the Supremacy Clause of the Constitution, declares:
'This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; . . .'
There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates, as well as the history that surrounds the adoption of the treaty provision in Article VI, make it clear that the reason treaties were not limited to those made in 'pursuance' of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights—let alone alien to our entire constitutional history and tradition—to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government, and they cannot be nullified by the Executive or by the Executive and the Senate combined.
There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. For example, in Geofroy v. Riggs, 133 U. S. 258, 133 U. S. 267, it declared:
'The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government, or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.'
This Court has repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that, when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument.[29]
According to the Cato Institute, these treaties only bind (legally obligate) the United States to comply with them as long as that nation agrees to remain a state party to these treaties. The U.S. Congress and the President of the United States have the absolute sovereign right to withdraw from or abrogate at any time these two instruments, in accordance with said nation's Constitution, at which point these treaties will cease to bind that nation in any way, shape, or form.[30]
A provision for automatic compliance with treaty obligations is found at 21 U.S.C.§ 811(d), which also establishes mechanisms for amending international drug control regulations to correspond with HHS findings on scientific and medical issues. If control of a substance is mandated by the Single Convention, the Attorney General is required to 'issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations,' without regard to the normal scheduling procedure or the findings of the HHS Secretary. However, the Secretary has great influence over any drug scheduling proposal under the Single Convention, because 21 U.S.C.§ 811(d)(2)(B) requires the Secretary the power to 'evaluate the proposal and furnish a recommendation to the Secretary of State which shall be binding on the representative of the United States in discussions and negotiations relating to the proposal.'
Similarly, if the United Nations Commission on Narcotic Drugs adds or transfers a substance to a schedule established by the Convention on Psychotropic Substances, so that current U.S. regulations on the drug do not meet the treaty's requirements, the Secretary is required to issue a recommendation on how the substance should be scheduled under the CSA. If the Secretary agrees with the Commission's scheduling decision, he can recommend that the Attorney General initiate proceedings to reschedule the drug accordingly. If the HHS Secretary disagrees with the UN controls, however, the Attorney General must temporarily place the drug in Schedule IV or V (whichever meets the minimum requirements of the treaty) and exclude the substance from any regulations not mandated by the treaty, while the Secretary is required to request that the Secretary of State take action, through the Commission or the UN Economic and Social Council, to remove the drug from international control or transfer it to a different schedule under the Convention. The temporary scheduling expires as soon as control is no longer needed to meet international treaty obligations.
This provision was invoked in 1984 to place Rohypnol (flunitrazepam) in Schedule IV. The drug did not then meet the Controlled Substances Act's criteria for scheduling; however, control was required by the Convention on Psychotropic Substances. In 1999, an FDA official explained to Congress:
Rohypnol is not approved or available for medical use in the United States, but it is temporarily controlled in Schedule IV pursuant to a treaty obligation under the 1971 Convention on Psychotropic Substances. At the time flunitrazepam was placed temporarily in Schedule IV (November 5, 1984), there was no evidence of abuse or trafficking of the drug in the United States.[31]
The Cato Institute's Handbook for Congress calls for repealing the CSA, an action that would likely bring the United States into conflict with international law, were the United States not to exercise its sovereign right to withdraw from and/or abrogate the Single Convention on Narcotic Drugs and/or the 1971 Convention on Psychotropic Substances prior to repealing the Controlled Substances Act.[30] The exception would be if the U.S. were to claim that the treaty obligations violate the United States Constitution. Many articles in these treaties—such as Article 35 and Article 36 of the Single Convention—are prefaced with phrases such as 'Having due regard to their constitutional, legal and administrative systems, the Parties shall . . .' or 'Subject to its constitutional limitations, each Party shall . . .' According to former United Nations Drug Control Programme Chief of Demand Reduction Cindy Fazey, 'This has been used by the USA not to implement part of article 3 of the 1988 Convention, which prevents inciting others to use narcotic or psychotropic drugs, on the basis that this would be in contravention of their constitutional amendment guaranteeing freedom of speech'.[32]
There are five different schedules of controlled substances, numbered I–V. The CSA describes the different schedules based on three factors:
The following table gives a summary of the different schedules.[33]
Potential for Abuse | Accepted Medical Use? | Potential for Addiction | |
---|---|---|---|
Schedule I | High | None | Drug is not safe to use, even under medical supervision |
Schedule II | High | Yes; sometimes allowed only with 'severe restrictions' | Abusing the drug can cause severe physical and mental addiction |
Schedule III | Medium[a] | Yes | Abusing the drug can cause severe mental addiction, or moderate physical addiction |
Schedule IV | Low[b] | Yes | Abusing the drug may lead to mild mental or physical addiction |
Schedule V | Lowest[c] | Yes | Abusing the drug may lead to mild mental or physical addiction |
Placing a drug or other substance in a certain schedule or removing it from a certain schedule is primarily based on 21 USC §§ 801, 801a, 802, 811, 812, 813, and 814. Every schedule otherwise requires finding and specifying the 'potential for abuse' before a substance can be placed in that schedule.[34] The specific classification of any given drug or other substance is usually a source of controversy, as is the purpose and effectiveness of the entire regulatory scheme.
The term 'controlled substance' means a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter. The term does not include distilled spirits, wine, malt beverages, or tobacco, as those terms are defined or used in subtitle E of the Internal Revenue Code of 1986.
Some have argued that this is an important exemption, since alcohol and tobacco are two of the most widely used drugs in the United States.[36][37] Also of significance, the exclusion of alcohol includes wine which is sacramentally used by many major religious denominations in the United States.
Schedule I substances are described as those that have the following findings:
No prescriptions may be written for Schedule I substances, and such substances are subject to production quotas which the DEA imposes.
Under the DEA's interpretation of the CSA, a drug does not necessarily have to have the same 'high potential for abuse' as heroin, for example, to merit placement in Schedule I:
[W]hen it comes to a drug that is currently listed in schedule I, if it is undisputed that such drug has no currently accepted medical use in treatment in the United States and a lack of accepted safety for use under medical supervision, and it is further undisputed that the drug has at least some potential for abuse sufficient to warrant control under the CSA, the drug must remain in schedule I. In such circumstances, placement of the drug in schedules II through V would conflict with the CSA since such drug would not meet the criterion of 'a currently accepted medical use in treatment in the United States.' 21 USC 812(b). (emphasis added)[39]
Drugs listed in this control schedule include:
Schedule II substances are those that have the following findings:
Except when dispensed directly to an ultimate user by a practitioner other than a pharmacist, no controlled substance in Schedule II, which is a prescription drug as determined under the Federal Food, Drug, and Cosmetic Act (21 USC 301 et seq.), may be dispensed without the written prescription of a practitioner, except that in emergency situations, as prescribed by the Secretary by regulation after consultation with the Attorney General, such drug may be dispensed upon oral prescription in accordance with section 503(b) of that Act (21 USC 353 (b)). With exceptions, an original prescription is always required even though faxing in a prescription in advance to a pharmacy by a prescriber is allowed.[46] Prescriptions shall be retained in conformity with the requirements of section 827 of this title. No prescription for a controlled substance in Schedule II may be refilled.[47] Notably no emergency situation provisions exist outside the Controlled Substances Act's 'closed system' although this closed system may be unavailable or nonfunctioning in the event of accidents in remote areas or disasters such as hurricanes and earthquakes. Acts which would widely be considered morally imperative remain offenses subject to heavy penalties.[48]
These drugs vary in potency: for example fentanyl is about 80 times as potent as morphine (heroin is roughly two times as potent). More significantly, they vary in nature. Pharmacology and CSA scheduling have a weak relationship.
Because refills of prescriptions for Schedule II substances are not allowed, it can be burdensome to both the practitioner and the patient if the substances are to be used on a long-term basis. To provide relief, in 2007, 21 C.F.R.1306.12 was amended (at 72 FR64921) to allow practitioners to write up to three prescriptions at once, to provide up to a 90-day supply, specifying on each the earliest date on which it may be filled.[49]
Drugs in this schedule include:
Schedule III substances are those that have the following findings:
Except when dispensed directly by a practitioner, other than a pharmacist, to an ultimate user, no controlled substance in Schedule III or IV, which is a prescription drug as determined under the Federal Food, Drug, and Cosmetic Act (21 USC 301 et seq.), may be dispensed without a written or oral prescription in conformity with section 503(b) of that Act (21 USC 353 (b)). Such prescriptions may not be filled or refilled more than six months after the date thereof or be refilled more than five times after the date of the prescription unless renewed by the practitioner.[47] A prescription for controlled substances in Schedules III, IV, and V issued by a practitioner, may be communicated either orally, in writing, or by facsimile to the pharmacist, and may be refilled if so authorized on the prescription or by call-in.[46] Control of wholesale distribution is somewhat less stringent than Schedule II drugs. Provisions for emergency situations are less restrictive within the 'closed system' of the Controlled Substances Act than for Schedule II though no schedule has provisions to address circumstances where the closed system is unavailable, nonfunctioning or otherwise inadequate.
Drugs in this schedule include:
'Placement on schedules; findings requiredSchedule IV substances are those that have the following findings:
Control measures are similar to Schedule III. Prescriptions for Schedule IV drugs may be refilled up to five times within a six-month period. A prescription for controlled substances in Schedules III, IV, and V issued by a practitioner, may be communicated either orally, in writing, or by facsimile to the pharmacist, and may be refilled if so authorized on the prescription or by call-in.[46]
Drugs in this schedule include:
Schedule V substances are those that have the following findings:
No controlled substance in Schedule V which is a drug may be distributed or dispensed other than for a medical purpose.[47] A prescription for controlled substances in Schedules III, IV, and V issued by a practitioner, may be communicated either orally, in writing, or by facsimile to the pharmacist, and may be refilled if so authorized on the prescription or by call-in.[46]
Drugs in this schedule include:
The Controlled Substances Act also provides for federal regulation of precursors used to manufacture some of the controlled substances. The DEA list of chemicals is actually modified when the United States Attorney General determines that illegal manufacturing processes have changed.
In addition to the CSA, due to pseudoephedrine (PSE) and ephedrine being widely used in the manufacture of methamphetamine, the U.S. Congress passed the Methamphetamine Precursor Control Act which places restrictions on the sale of any medicine containing pseudoephedrine. That bill was then superseded by the Combat Methamphetamine Epidemic Act of 2005, which was passed as an amendment to the Patriot Act renewal and included wider and more comprehensive restrictions on the sale of PSE-containing products. This law requires[56] customer signature of a 'log-book' and presentation of valid photo ID in order to purchase PSE-containing products from all retailers.[57]
Additionally, the law restricts an individual to the retail purchase of no more than three packages or 3.6 grams of such product per day per purchase – and no more than 9 grams in a single month. A violation of this statute constitutes a misdemeanor. Retailers now commonly require PSE-containing products to be sold behind the pharmacy or service counter. This affects many preparations which were previously available over-the-counter without restriction, such as Actifed and its generic equivalents.
There has been criticism against the schedule classifications of the listed drugs and substances in the CSA, citing undefined terms.[4][5]Some criticism has arisen due to research that has found several substances on the list of Schedule I substances to have actual accepted medical uses and low abuse potential, despite the requirement for a Schedule I listing mandating that any substance so scheduled have both a high potential for abuse and no accepted medical use.[58][59][60] One such example is the legalization of marijuana in some capacity in currently 33 states.[61]
Similar legislation outside of the United States:
Under the authority vested in the Attorney General by section 201(a) of the CSA (21 USC 811(a)), and delegated to the Administrator of DEA by Department of Justice regulations (28 CFR 0.100), and redelegated to the Deputy Administrator pursuant to 28 CFR 0.104…74 FR42217