On May 16, 2024, The Department of Justice (“DOJ”) proposed via a Notice of Proposed Rulemaking to transfer marijuana from Schedule 1 of the Controlled Substances Act (“CSA”) to Schedule III of the CSA. The full proposed rulemaking can be found here: https://www.dea.gov/sites/default/files/2024-05/Scheduling%20NPRM%20508.pdf

In doing this, the DOJ stated they are bringing their view into consistency with the Department of Health and Human Services (“HHS”), insomuch into now viewing that marijuana has a currently accepted medical use as well as HHS’s views about marijuana’s abuse potential and level of physical or psychological dependence.

The CSA requires that such actions be made through formal rulemaking on the record after opportunity for a hearing. If the transfer to Schedule III is finalized, the regulatory controls applicable to Schedule III controlled substances would apply, as appropriate, along with existing marijuana-specific requirements and any additional controls that might be implemented, including those that might be implemented to meet U.S. treaty obligations. If marijuana is transferred into Schedule III, the manufacture, distribution, dispensing, and possession of marijuana would remain subject to the applicable criminal prohibitions of the CSA. Any drugs containing a substance within the CSA’s definition of “marijuana” would also remain subject to the applicable prohibitions in the Federal Food, Drug, and Cosmetic Act.

DOJ is soliciting comments on this proposal for 60 days from the publication of the rule, which was May 16, 2024. Early commentary from First Advantage’s Chief MRO is that this could impact an employer’s policy in the event the policy specifically mentions or categorizes “controlled substances” under the CSA. In the event an employer’s policy does address this topic, new definitions or categories may be needed.

Once finalized, First Advantage will publish another summary memorandum on this topic, including more commentary as it develops. In the interim, during First Advantage’s presentation of its Trends Report, some of the top questions that employers said they would consider under such a rule change were: 1) How could this change your business’ handling of adjudication of criminal charges with marijuana?; 2) How will your business handle pre-employment drug testing for non-regulated positions?; and, 3) How will the business handle Post-accident and Reasonable cause screening, the same or differently? It may be prudent to consider these questions prior to the issuance of the final rule.

The foregoing commentary is not offered as legal advice but is instead offered for informational purposes. First Advantage is not a law firm and does not offer legal advice. The foregoing commentary is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances or to provide legal advice. First Advantage makes no assurances regarding the accuracy, completeness, currency, or utility of the following information. Regulatory developments and impacts are continuing to evolve in this area.