New Jersey Court Clears Way for Marijuana to be Removed from State’s Schedule One

A New Jersey Appeals Court has issued an opinion wherein they indicate that the New Jersey Division of Consumer Affairs (Division) has the authority to reclassify marijuana, and thereby remove it from Schedule I. According to the Drug Enforcement Agency’s website, “drugs, substances, and certain chemicals used to make drugs are classified into five (5) distinct categories or schedules depending upon the drug’s acceptable medical use and the drug’s abuse or dependency potential.”  The rate of abuse of a drug is one of the most important factors.  Those drugs having a high potential for abuse combined with a significant potential to create psychological and/or physical dependence, are classified as “schedule I” drugs.  Another important determinative factor is that such drugs have no “no currently accepted medical use.”

In New Jersey, a prisoner convicted of a drug crime involving marijuana filed a petition asking the Division to change the categorization of marijuana from schedule I to schedule IV.  These drugs have a low potential for abuse and low risk of dependence. Commonly known schedule IV drugs include Xanax, Valium, and Ambien.  In his brief, the prisoner argued that because the Legislature determined that marijuana had “a beneficial use . . . in treating or alleviating the pain or other symptoms associated with certain debilitating medical conditions” when it passed the New Jersey Compassionate Use Medical Marijuana Act (CUMMA), N.J.S.A. 24:6I-1 to -16, in 2010, marijuana no longer satisfied one of the requirements for inclusion in Schedule I, that the substance “has no accepted medical use in treatment,” N.J.S.A. 24:21-5(a).

The Director denied the petition indicating that marijuana has been listed as a Schedule I substance since the passing of the federal Controlled Substances Act (CSA) in 1970[i]. He also indicated that he disagreed with the prisoner’s position that the CUMMA demonstrated a legislative intention “to treat marijuana similar to or consistent with substances listed in Schedules II-V.”

The NJ Court of Appeals indicated that “scientific research suggests that marijuana has “potential therapeutic value” for “pain relief, control of nausea and vomiting, and appetite stimulation.”[ii] Additionally, that marijuana: “reduces muscle spasms and spasticity; reduces intraocular pressure, and reduces anxiety.[iii]” Moreover, “marijuana has been used successfully to treat the debilitating symptoms of cancer and cancer chemotherapy, AIDS, multiple sclerosis, epilepsy, glaucoma, anxiety, and other serious illnesses.[iv]”

Furthermore, that while there may have been “no accepted medical use in treatment in the United States” for marijuana when the CDSA became effective, any argument suggesting that premise is still valid in the post-CUMMA era strains credulity beyond acceptable boundaries.”

The Court indicated in order for marijuana to remain as a schedule I drug a determination would need to be made that it “has a high potential for abuse and, if so, whether that factor justifies continued inclusion in the face of compelling evidence of accepted medical use and impediments to its legal use which may be attributable to its classification.”

Finally, the court concluded that the Director was wrong when it indicated that it did not have the authority to reclassify marijuana without the federal government doing it first.  Thus, while this opinion does not itself reclassify the drug, and while marijuana remains a schedule I drug in NJ, this opinion does go a long way toward clearing the way for this to happen.

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[i] see 21 U.S.C.A. § 812(c)

[ii] Institute of Medicine, Marijuana and Medicine: Assessing the Science Base (J. Joy, S. Watson, and J. Benson eds. 1999), http://medicalmarijuana.procon.org/sourcefiles/IOM_Report.pdf .

[iii] Ibid.

[iv] Ibid.