Greetings, I have had a few questions about the status of Medical Marijuana at the Federal level, and where the process stands with any changes.
Proposed Federal Changes and Process/Timing update
Under Federal law, marijuana is classified as a Schedule I drug by the DEA. It is illegal, dangerous and as addictive as substances like heroin, with “no accepted medical use”, per the Federal rule. The DEA studied the Schedule I status and rejected changing it in 2016.
In 2022, the President directed both the departments of HHS and DEA review how marijuana is scheduled under the law. In May 2024, that the after the HHS and DEA review, the Attorney General circulated a proposal to reclassify marijuana from Schedule I to Schedule III. Schedule III drugs “are classified as having a potential for abuse less than the drugs or other substances in schedules I and II, a currently accepted medical use in treatment in the United States, and moderate or low physical dependence or high psychological dependence that may result from their use.”
Basically, if marijuana moves from Schedule I to Schedule III, then there is no Federal ban on its use as a medication like there is now.
The process will take some time however to become “law”. The DEA now must draft the new rule. After the proposed rule from the DEA, the agency will begin a 60-day public participation period and allow for interested parties to request hearings on the record. Then after the final rule is approved, it must be published in the federal register for 30 days before it becomes effective.
As a Schedule III substance, marijuana will be treated like ketamine or acetaminophen products containing codeine, and other prescription drugs that are controlled substances in Schedule III.
Update- The DEA held an initial public hearing on 12/2/2024, however the judge did not hear testimony at that time. More hearings were scheduled for Jan 21-March 6, 2025. The experts are saying the DEA will publish a rule in the latter half of 2025. However, politics are always an issue at this level. The President had said during the campaign he was for moving marijuana to Schedule III. However, the experts have pointed out that the current attorney general was not for expanding medical marijuana when she was AG of Florida, and the current HHS secretary just issued some statements stating marijuana can have some “really catastrophic impacts” on consumers.
So it is unclear reading the tea leaves if there is any change in the likelihood we will see a change this year due to the change in the administration.
Impact of change on FL WC Law
Well, the Florida statute on medical marijuana does specially ban it’s provision by employer/carriers under the FL WC law (FL Stat Section 381.986(15)(f)). Unless that is amended, it may remain so. However, if that statute is amended to remove ban, we would likely have to provide medical marijuana to injured workers as the only basis for the ban was the Federal classification of it being a Schedule I drug with no medicinal use.
As for the intoxication defense, it may change that as well. Currently, for example, if a claimant tests positive for opiates, as long as they have a prescription, it is not a failed drug test. If there is no prescription, they are taking a controlled substance illegally, and there is a failed drug test. The same will likely hold true for marijuana under the intoxication defense, even if the Florida statute banning its provision under WC is not amended. Prescription = no failed drug test, no prescription = failed drug test.
What impact this will have on the overall FL medical marijuana law and dispensaries remains to be seen.
All of this is a few months down the road, and I will be sure to follow the progress and update you as it moves through the process.
Sincerely,
Morgan Indek | Managing Partner