TOPIC

Scientific pilot programs are the best way to achieve major cannabis reform through executive action. The same process we describe below for medical marijuana—and the same approach the Department of Justice (DOJ) and Drug Enforcement Administration (DEA) should have used—can also work for almost any other type of cannabis reform. Once the process is in place, it can be repeated for different programs.

These pilot programs would do more than change policy. They would also give state and federal governments a chance to study how different cannabis programs affect public health, public safety, the economy, and society. That research could then be used to build better cannabis laws based on real evidence instead of politics.

Medical Marijuana

The Attorney General should have started by simply moving marijuana into Schedule III. Instead, the final rule rescheduled products sold through 41 different state medical marijuana programs. That was a mistake.

The Attorney General also should have worked closely with the Department of Health and Human Services (HHS) and the Food and Drug Administration (FDA). The DEA should not make medical decisions on its own because those decisions belong to health experts. Federal law already provides several ways for the DEA and FDA could work together to recognize state-legal medical marijuana programs.

Under 21 U.S.C. § 811(d)(1), the Attorney General can move a drug to a different schedule if doing so helps the United States meet its international treaty obligations. But that law applies to a substance, not to state marijuana programs. The FDA, not the DEA, has the authority to decide what qualifies as a drug. This means the DEA could not simply create a new category called "state-legal marijuana" without FDA involvement. Legally, that approach did not make sense.

Instead, the DEA had two better options. It could have skipped the rescheduling hearing and simply issued a final rule moving “marijuana” into Schedule III. Or it could have ended the current rescheduling process and started a new scheduling action under 21 U.S.C. § 811(d)(1). Either option would have greatly weakened the legal arguments raised in NORML v. DEA because HHS had already recommended placing marijuana in Schedule III. This would have made it much harder to challenge marijuana's new classification and would have shifted the legal debate to a different question: how state-legal businesses could become registered with the DEA.

That question could have been handled separately.

After marijuana was moved to Schedule III, the DEA would have had several ways to regulate state medical marijuana programs. Both options would require the FDA's involvement.

The first option would allow state-licensed medical marijuana businesses to register with the DEA.

The second option would use the DEA's authority under 21 U.S.C. § 872(e) to waive those registration requirements altogether. Instead, DEA could approve businesses licensed by their states to legally possess and distribute medical marijuana without individual DEA registrations.

The FDA's role is essential because it has the legal authority to oversee medical products. The DEA and FDA could have created a program where each state's medical marijuana program submitted an Investigational New Drug (IND) application. Under 21 C.F.R. § 312.10, the FDA can waive certain application requirements if it decides the program does not create a significant and unreasonable risk to people. In other words, the law recognizes that some reasonable risks are acceptable when the public benefit is greater.

Some people may wonder whether the FDA could legally reach that conclusion. We believe it could. Research shows that many people drink less alcohol after they begin using marijuana (see Marijuana is Safer than Alcohol). Since excessive alcohol use causes roughly 488 deaths every day in the United States, replacing some alcohol use with marijuana could provide an important public health benefit.

If the DEA and FDA had worked together through the IND process, they could have officially recognized state medical marijuana programs within the FDA's existing drug approval system. That would have made the Schedule III rule much stronger and easier to defend in court.

Federal law already contains several ways to conduct scientific research. Each of those pathways could also support different legal cannabis markets. For example, similar pilot programs could be created for medical marijuana, adult-use marijuana, social equity programs, or intoxicating hemp products.

The better approach would have been simple. First, move marijuana into Schedule III. Then have the DEA and FDA work together to create scientific pilot programs that study state medical marijuana programs, patient outcomes, and the broader effects of legalization.

Most importantly, all of this can be done by executive agencies without requiring Congress to pass a new law.

Adult-Use Marijuana

The same approach can be used for adult-use marijuana. The executive branch could direct the DEA and FDA to create scientific pilot programs that study legal recreational marijuana markets across the United States. The research could help determine which policies produce the best results before creating a permanent federal system. The study could focus on health outcomes of substitutions for alcohol and tobacco.

Intoxicating Hemp

The same process could also be used for intoxicating hemp products. Pilot programs could compare products made from hemp with similar products made from marijuana. They could also study how intoxicating hemp is used in states where it is already legal. That research would help regulators better understand the similarities, differences, and possible risks.

Social Equity

The executive branch could also use scientific pilot programs to study social equity programs. The DEA, FDA could work with agencies such as the Small Business Administration to test different approaches around the country. The goal would be to learn which programs best expand business opportunities while creating fair and successful outcomes.

Industrial Hemp

Scientific pilot programs could also help grow the industrial hemp industry. They are not the only option, however.

Although Congress must approve most federal subsidies, a future administration could direct some Department of Defense (DOD) research funding toward industrial hemp projects. The DOD has broad authority over many of the funds Congress provides for research. That flexibility could help launch new hemp technologies and industries.

Industrial hemp has the potential to compete with products made from oil, cotton, plastics, and even some pharmaceutical materials. Many studies already show that hemp can replace products that are less sustainable and more harmful to the environment. With enough research, funding, and government support, the hemp industry could grow into a strong and competitive part of the American economy.