This is the tenth of 13 posts describing the impacts of marijuana’s rescheduling. An homage to Phish’s historic run at Madison Square Garden in the Summer of 2017, Budding Trends Baker’s Dozen will address how rescheduling affects various areas of the law and our daily lives. Enjoy the run.

There were massive cheers in the marijuana industry when Acting Attorney General Todd Blanche issued a final order last week that rescheduled FDA-approved marijuana medications and state-licensed medical marijuana. And for those two categories, there were great reasons to rejoice.

But what about adult-use/recreational cannabis operators, operators who hold both medical and adult-use marijuana licenses, or operators who have a single license authorizing medical and adult-use operations? That debate will formally begin during an administrative hearing on June 29 and is to conclude no later than July 15.

There are two obvious tensions between rescheduling marijuana for medical purposes and for recreational purposes. The first, and one that is largely outside the scope of this post because it is a policy decision that will be very difficult to predict, is whether the DOJ has the political will to treat medical and recreational marijuana the same way. After all, just over half of the states that have a medical program also have a recreational program, perhaps suggesting that there is a delta in popular support between the two. And, after all, we are talking about the exact same products.For example, a person over the age of 21 can purchase a bag of marijuana gummies in Colorado that is, for all intents and purposes, exactly the same as the bag of gummies a medical marijuana patient can purchase in Colorado.

The second, which is obvious only to those who have read the final rule rescheduling medical marijuana, is that the decision was based in large part on the belief that medical marijuana could lawfully be rescheduled consistent with the United States’ obligations under the Single Convention Treaty and Convention on Psychotropic Substances because those authorities permit the scheduling and rescheduling of substances used for medical and scientific purposes. Is that the case with adult-use/recreational marijuana? Or did the final rule use these convention authorities to reschedule medical marijuana quickly while reserving the right to reschedule non-medical marijuana in ways either consistent with (or perhaps not consistent with) the way DOJ rescheduled marijuana (e.g., pursuant to the Administrative Procedures Act)?

Without taking either side, let’s dig in.

Is the Single Convention a Problem for Rescheduling Advocates?

This is a potentially threshold question for predicting whether adult-use marijuana will be rescheduled, because the path is easier if the Single Convention is not an impediment.

As an aside, has anyone ever heard so much about the Single Convention than we have in the past few weeks? Sure, industry insiders and lawyers understood that the Single Convention was something to be dealt with, but the acting AG’s invocation and prominent placement of it in the final rule really brought the treaty to the forefront.

It is apparent that DOJ acted under 21 U.S.C. § 811(d)(1) — which authorizes the attorney general to control a substance under the schedule deemed most appropriate to satisfy U.S. obligations under international treaties in effect on October 27, 1970, including the Single Convention on Narcotic Drugs – to satisfy the president’s increasingly urgent demands for quick rescheduling.

This provision permits the attorney general to issue a scheduling order “without regard to” the findings and notice-and-comment rulemaking procedures that ordinarily apply under the CSA, per 21 U.S.C. 811 (a) or (b). By invoking treaty authority, Blanche bypassed the Administrative Procedure Act’s notice-and-comment requirements and the Controlled Substances Act’s ordinary scientific-findings prerequisites. That’s why the order could take effect immediately. But the same treaty framework that enabled the speed also threatens to constrain the destination.

Does the Single Convention Limit the Adult-Use Path?

The Single Convention obligates its parties to impose certain control measures over drugs listed in its Schedule I, including that allowable substances be limited to those that are produced, distributed, and used for medical and scientific purposes.

Blanche’s order, while noting he can bypass the CSA’s Section 811 (a) and (b) findings, appears to lean into this directly. Blanche points specifically to HHS’s 2023 scientific and medical findings, arguing that limiting the reclassification to medical marijuana will help meet U.S. obligations under the Single Convention. That treaty, he notes, exempts “medicinal cannabis” from a general requirement that signatory governments control the wholesale supply of marijuana.

Here is where the logical tension becomes acute: By anchoring the justification for rescheduling in the Single Convention’s “medical purposes” and “medical and scientific purposes” language, the order arguably ratifies the treaty framework as the governing constraint. If medical use is what justifies Schedule III placement under the treaty, one could argue that adult use — which is definitionally not medical or scientific — cannot be justified under the same treaty authority.

On the other hand, valid arguments exist that non-medical, non-scientific activities are not prohibited but are simply less regulated by the convention.  Article 2 of the Single Convention says that “drugs which are commonly used in the industry for other than medical and scientific purposes” are exempt from control, provided that two requirements are met — implementing effective measures to avoid harms and providing reasonable statistical reporting. Because recreational marijuana consumption is an “other than medical or scientific” use that has become common in the industry (the legal cannabis industry itself), a state that implements harm-reduction measures and reports quantities to the International Narcotics Control Board (INCB) can lawfully claim the exemption.

Beyond these arguments based on the text of the convention, arguments that moving marijuana to Schedule III does not violate international treaties could include:

• Treaty flexibility under changing norms – The convention’s drafters did not anticipate modern regulatory models, and the treaty should be interpreted in light of subsequent state practice under international law (Vienna Convention on the Law of Treaties, Article 31(3)(b)). Several parties — Canada, Uruguay, Netherlands de facto — already permit adult use without withdrawal or formal treaty violation proceedings.
• Political non-enforcement – The INCB has criticized Canada and Uruguay but has no enforcement mechanism. The U.S. could simply accept that tension and rely on the fact that the INCB cannot compel compliance. That approach sounds awfully similar to U.S. marijuana policy up to this point. I’m looking at you, Rohrabacher-Farr.
• Withdrawal and re-accession – Some argue the only clean path for full adult-use legalization at the federal level is withdrawal from the Single Convention (permitted with six months’ notice under Article 46) and re-accession with a reservation — the path Uruguay and Canada have declined to take but that remains legally available. This may be unattractive politically and could be time-consuming, but do you think that would stop this administration?

A Deeper Strategic Problem

Summed up, the potential obstacle provided by the Single Convention is that Blanche’s decision to follow the treaty pathway and framing the entire justification around the Single Convention’s medical exemption may constrain future efforts to drop adult-use marijuana to Schedule III. Blanche or future attorneys general who want to move adult-use marijuana to Schedule III (or deschedule it entirely) will have to either (1) argue that the Single Convention permits adult-use legalization — a position that is textually difficult and internationally contested — or (2) argue that the U.S. should withdraw from or renegotiate its treaty obligations — a far more politically fraught path.

Arguments in Support of Rescheduling Adult-Use Marijuana

As for the substantive arguments in favor of extending Schedule III to adult-use marijuana, they’re largely the same arguments that got medical marijuana there — but with some additional complications. Here’s how they’ll likely be framed at the hearing:

• The scientific record already supports it. HHS concluded in August 2023 that marijuana has a currently accepted medical use and a lower abuse potential relative to other Schedule I and II substances. The DOJ Office of Legal Counsel opined in 2024 that neither international drug control treaties nor the CSA compels marijuana’s continued placement in Schedule I. These findings and opinions are not product-specific — they apply to marijuana as a substance, not just marijuana dispensed through a medical program. This opens the door to a DOJ argument along the lines of: “21 U.S.C. § 811(d)(1) permitted quick action for medical marijuana rescheduling because of the urgent need for patient access, but we believe all marijuana should be rescheduled through typical administrative procedures.” That dramatically reduces the legal significance of using 21 U.S.C. § 811(d)(1) in the April announcement and the heavy reliance on the Single Convention.
• The medical/adult-use distinction is increasingly artificial. In states with both programs, the plant is the same. The THC content, the delivery mechanisms, the consumer health considerations — none of those change based on whether a customer has a medical certification. Drawing a Schedule I/Schedule III line at the licensing structure rather than the substance itself is hard to defend on scientific grounds.
• State program reality. Forty states and the District of Columbia have state- or locally sanctioned medical marijuana programs. Many of those also have adult-use programs. The federal government is effectively administering two different drug schedules for the same substance sold in the same states — sometimes by the same operators under the same license. If the United States is not already considered to be in violation of its treaty obligations, it’s hard to see as a practical matter why it would be any different if adult-use marijuana also was rescheduled.
• The dual-operator problem. Operators who hold both a medical marijuana license and an adult-use license in the same state now find themselves simultaneously subject to two different federal regimes within the same business. This creates compliance complexity that serves no clear public health purpose and that the hearing will likely hear about at length from industry participants. Again, it appears to look like a distinction without a difference and begins to look more like just plain common sense to proceed with full rescheduling.

Conclusion

The Single Convention framing in the final order does make adult-use federal rescheduling harder than it needed to be, but arguments exist to support that move. Rest assured, fireworks are expected between now and the scheduled June 29 hearing. We’ll be monitoring the developments and keep you apprised.  

Thanks for stopping by.