Recently, Robert F. Kennedy (“RFK”) Jr.’s nomination for secretary of the Department of Health and Human Services (“HHS”) was confirmed by the Senate, and he will soon become the leader of America’s largest health agency.[1] While some of his controversial claims include his “refusal to embrace science that shows vaccines do not cause autism” and “denials of the efficacy of vaccines” in general, he has also advocated for the federal decriminalization of marijuana.[2] However, his more recent declarations and the government forces at play mean this decriminalization will not likely come to fruition.[3]
The current state of federal marijuana regulation reflects the Biden administration’s efforts to drive reform.[4] At the request of President Biden, HHS released a recommendation calling for the rescheduling of marijuana from a Schedule I substance to a Schedule III substance to combat the rigid structure of the Controlled Substances Act (“CSA”), which is the basis for federal drug laws.[5] According to the CSA, a Schedule I drug does not have a “currently accepted medical use” (“CAMU”) in the United States, posing the highest risk and potential for abuse in the schedule.[6] By contrast, a Schedule III substance must have a CAMU and lower abuse potential.[7] Reclassifying marijuana to Schedule III would have widespread implications for research and patient access, as well as reducing financial burdens for cannabis suppliers and financiers.[8] Specifically, this change would relax the strict regulations surrounding how marijuana is stored, secured, and documented for research purposes.[9] Rescheduling will allow patients, especially those in states with stringent marijuana laws, to legally obtain prescriptions for marijuana under federal law and could even allow for medications that contain cannabis to be covered under insurance.[10]
The HHS recommendation also included a change in the evidentiary requirements needed to support rescheduling.[11] The test for proving that a drug has a CAMU—and could thus be removed from Schedule I to a lower Schedule—would no longer require “rigorous scientific proof that the drug works as intended.”[12] Because marijuana can satisfy this relaxed CAMU standard, it would be easier to reclassify it as a Schedule III substance.[13]
The Drug Enforcement Agency (“DEA”) “accepted” the HHS recommendation, setting the stage for marijuana rescheduling if put into practice.[14] Despite agreement among government agencies predating his confirmation, RFK Jr. showed no support for the new CAMU testing criteria or the new evidentiary requirement for rescheduling.[15] Instead, he stated that scheduling is “a prerogative of the DEA,” requiring “an assessment backed by robust evidence.”[16] He also made a vague statement about adherence to the CSA and the need to “comply with overarching legal obligations.”[17] This comes as a shock to many, as RFK Jr. once supported the decriminalization of marijuana and opposed the lack of cohesion between federal and state marijuana laws.[18] His responses made no mention of the fact that marijuana advocates had pushed for the suspension of hearings on the matter due to the DEA’s unreasonable practices, or the need for uniformity in state and federal substance laws.[19]
This change in rhetoric signifies that RFK Jr. does not plan to take an active role in directing the DEA, deferring to the Trump-appointed head of the DEA, Derek Maltz, on matters related to rescheduling and legalization.[20] Maltz has openly opposed cannabis reform, suggesting a connection between the drug and school shootings and claiming the recent advancements in legalization are a result of the Justice Department “hijack[ing]” the process away from the DEA.[21] Deference to Maltz means that RFK Jr. will likely not disturb the current practice of the DEA, which controls the CSA and marijuana scheduling.[22]
RFK Jr.’s failure to acknowledge a Biden-era reform that once seemed to align with his own views could be evidence that he will not be the positive change that marijuana activists have been hoping for. While the DEA possesses ultimate authority on reclassification, a pro-marijuana HHS secretary can drive progress, as the agency plays a vital role in recommending and evaluating those decisions.[23] Absent a shift in RFK. Jr.’s perspective to a more pro-marijuana agenda, the issue is at risk of staying “in limbo,” which it found itself in once the DEA began contesting the Biden-era reform.[24] Although proponents of marijuana reform have long faced uncertainty, RFK. Jr.’s plans, or lack thereof, would allow the DEA to continue prolonging the struggle for rescheduling or legalization.
[1] Natasha Korecki, Kate Santaliz & Brandy Zadrozny, Senate votes to confirm Robert F. Kennedy Jr. as health secretary, NBC Nᴇᴡs (Feb. 13, 2025), https://www.nbcnews.com/politics/congress/senate-votes-confirm-robert-f-kennedy-jr-health-secretary-rcna191856 [https://perma.cc/C5JS-8NTL].
[2] Natasha Korecki, Kate Santaliz & Brandy Zadrozny, Senate Panel Advances RFK Jr.’s Nomination to be Health Secretary, NBC Nᴇᴡs (Feb. 4, 2025), https://www.nbcnews.com/politics/congress/senate-panel-advances-rfk-jrs-nomination-health-secretary-rcna190438 [https://perma.cc/544M-LC6N]; Robert F. Kennedy Jr., X (June 25, 2023), https://x.com/RobertKennedyJr/status/1673012243158401026?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1673012243158401026%7Ctwgr%5E46609b99f2acbdad2b4ee7b3651a0d243d89e5d0%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.marijuanamoment.net%2Fwhere-presidential-candidate-robert-f-kennedy-jr-stands-on-marijuana-and-psychedelics%2F [https://perma.cc/6T3E-3EFE].
[3] Kyle Jaeger, RFK Says He’ll ‘Defer’ To DEA On Marijuana Rescheduling as Trump’s Healthcare Secretary, While Dodging Questions on Legalization Support, Mᴀʀɪᴊᴜᴀɴᴀ Mᴏᴍᴇɴᴛ (Jan. 31, 2025), https://www.marijuanamoment.net/rfk-says-hell-defer-to-dea-on-marijuana-rescheduling-as-trumps-health-secretary-while-dodging-questions-on-legalization-support/ [https://perma.cc/Y3WX-GHRN].
[4] Marijuana Recommendation by US Health Agency Hailed as First Step to Easing Weed Restrictions, AP Nᴇᴡs (Aug. 30, 2023), https://apnews.com/article/marijuana-health-schumer-becerra-dea-c00db5dabbeb9efd94cf17baff241e85 [https://perma.cc/4CJS-K9JP].
[5] Id.
[6] Id.
[7] Id.
[8] Jennifer Peltz & Lindsay Whitehurst, What reclassifying marijuana means for Americans, PBS Nᴇᴡs (May 1, 2024), https://www.pbs.org/newshour/health/what-reclassifying-marijuana-means-for-americans? [https://perma.cc/A8ZC-6EYJ].
[9] Rhitu Chatterjee, Scientists Welcome New Rules on Marijuana, but Research Will Still Face Obstacles, NPR (May 3, 2024), https://www.npr.org/sections/health-shots/2024/05/03/1248985559/marijuana-weed-schedule-i-iii-research-barriers [https://perma.cc/XR88-MTR7].
[10] Lo Friesen, Rescheduling Cannabis: Are We Entering A New Era?, Cᴀɴɴᴀʙɪs Sᴄɪ. & Tᴇᴄʜ. (2024), https://www.cannabissciencetech.com/view/rescheduling-cannabis-are-we-entering-a-new-era-# [https://perma.cc/22GM-9SXW].
[11] Robert A. Mikos, Marijuana and the Tyrannies of Scheduling, 93 Fᴏʀᴅʜᴀᴍ L. Rᴇᴠ. 473, 484-85 (2024).
[12] Id. at 474-76.
[13] Id. at 487.
[14] Id. at 475.
[15] Jaeger, supra note 3.
[16] Id.
[17] Id.
[18] Robert F. Kennedy Jr., X (June 25, 2023), https://x.com/RobertKennedyJr/status/1673012243158401026?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1673012243158401026%7Ctwgr%5E46609b99f2acbdad2b4ee7b3651a0d243d89e5d0%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.marijuanamoment.net%2Fwhere-presidential-candidate-robert-f-kennedy-jr-stands-on-marijuana-and-psychedelics%2F [https://perma.cc/6T3E-3EFE].
[19] Steve Gelsi, Cannabis Companies Say DEA Has Close Mind Against a Less-Dangerous Pot Ranking, Mᴀʀᴋᴇᴛ Wᴀᴛᴄʜ (Jan. 8, 2025), https://www.marketwatch.com/story/cannabis-companies-say-dea-has-closed-mind-against-a-less-dangerous-pot-ranking-e444d6b2?mod=articleinline [https://perma.cc/KV9L-P2F6] (claiming the DEA has chosen to exclude pro-cannabis groups and state agencies in Colorado from attending hearings while allowing anti-cannabis groups at those same hearings).
[20] Jaeger, supra note 3; Josh Meyer, Trump’s new DEA chief Derek Maltz a longtime proponent of declaring war on drug cartels, USA Tᴏᴅᴀʏ (Jan. 21, 2025), https://www.usatoday.com/story/news/politics/elections/2025/01/21/trump-dea-chief-derek-maltz-drug-cartels/77857943007/ [https://perma.cc/83PB-QU9C].
[21] Jaeger, supra note 3.
[22] Mikos, supra note 11.
[23] Joanna R. Lampe, The Controlled Substances Act (CSA): A Legal Overview for the 116th Congress, Cᴏɴɢ. Rsᴄʜ. Sᴇʀᴠ. (Oct. 9, 2019), https://crsreports.congress.gov/product/pdf/R/R45948/2#:~:text=The%20Drug%20Enforcement%20Administration%20(DEA,satisfies%20the%20applicable%20statutory%20criteria [https://perma.cc/J92T-G2JE].
[24] Gelsi, supra note 19.
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