New drug classification proposal could make marijuana federally legal with a prescription

CORRECTION: This story initially omitted that marijuana would also need approval from the U.S. Food and Drug Administration (FDA) to be a federally recognized prescription drug. It has been updated to include this information.

The U.S. Department of Health and Humans Services (HHS) recently provided a recommendation to the Drug Enforcement Administration (DEA) on marijuana policy.

The scheduling recommendation for the drug came at the direction of President Joe Biden, HHS Secretary Xavier Becerra said in a tweet on Aug. 30.

Though Becerra did not provide further details, Senate Majority Leader Chuck Schumer (D-N.Y.) said in a statement that HHS has recommended the downgrading of marijuana from a Schedule I to Schedule III controlled substance. These schedules refer to the federal government’s way of classifying drugs and other substances. 

One person claimed in a social media post that the proposed scheduling change could make marijuana federally legal with a prescription. 

THE QUESTION

Could marijuana be federally legal with a prescription as a Schedule III drug?

THE SOURCES

• U.S. Drug Enforcement Administration (DEA)
• Texas State Board of Pharmacy
• American Addiction Centers
• The Congressional Research Service (CRS)
• McGlinchey Stafford, a law firm
• Alex Kreit, an assistant professor and expert in drug law at Northern Kentucky University’s Salmon P. Chase College of Law

THE ANSWER

Yes, marijuana could be federally legal with a prescription as a Schedule III drug.

WHAT WE FOUND

The federal Controlled Substances Act (CSA) classifies drugs, substances and certain chemicals used to make drugs into five distinct categories called schedules. Those five categories are based on the drug’s acceptable medical use, and potential for abuse or dependency, the Drug Enforcement Administration (DEA) says. 

Right now, marijuana is categorized as a Schedule I drug, which is the highest and most dangerous classification in federal law. That means it has “no currently accepted medical use and a high potential for abuse,” according to the DEA. Heroin, LSD and ecstasy are also classified as Schedule I drugs. 

Though many U.S. states have legalized marijuana for medicinal and recreational uses, its Schedule I classification means it is still federally illegal for all uses. For example, people can’t bring marijuana on a plane because federal law applies at airports. 

Marijuana would have to be removed entirely from the five-category classification to be legalized for recreational use at the federal level, the Congressional Research Service (CRS) explains. 

If marijuana is reclassified into Schedule III in the future, it would be considered a drug with a “moderate to low potential for physical and psychological dependence,” according to the DEA. 

According to the Texas State Board of Pharmacy, Schedule III drugs also have “safe and accepted medical uses.” Drugs that are currently classified under Schedule III include Tylenol with codeine, ketamine, anabolic steroids and testosterone.

Schedule III drugs can be prescribed by a doctor, but are generally not available over the counter, American Addiction Centers says on its website.

Rescheduling on its own does not mean marijuana will immediately be available without a prescription under federal law. Marijuana would also need approval from the U.S. Food and Drug Administration (FDA) to become a federally recognized prescription drug, Alex Kreit, an assistant professor and expert in drug law at Northern Kentucky University’s Salmon P. Chase College of Law, told VERIFY.

The recreational sale of marijuana would still technically violate federal law. 

There are limits for Schedule III drug prescriptions, though. For example, the prescription may not be filled more than six months after the date it was issued or more than five times total, unless it’s renewed by a medical practitioner, according to the McGlinchey Stafford law firm. 

The scheduling change is not guaranteed, either, as the DEA still has the final say on whether to implement the HHS recommendations. 

The potential reclassification of marijuana as a Schedule III drug would impact areas such as business and research, McGlinchey Stafford says. 

It would lead to a reduced federal tax burden on marijuana businesses and would make it easier for researchers to study marijuana, according to the law firm.

If the federal government were to reclassify marijuana or entirely legalize it at some point, states could still enact their own restrictions or bans on the drug. The exception would be if Congress chose to preempt state laws on marijuana, which would prevent states from imposing their own bans, Alex Kreit, an assistant professor and expert in drug law at Northern Kentucky University’s Salmon P. Chase College of Law, said.