As Marijuana Moves to Schedule III, Here’s Why It Was Put in Schedule I

Whatever you think of the rescheduling debate, it is worth understanding how marijuana ended up in the federal government’s most restrictive category in the first place.

Today, as the Trump administration makes a historic move by reclassifying state-licensed medical marijuana from Schedule I to Schedule III, I wanted to resend this piece. Whatever your view of today’s change, it is impossible to understand the current debate without knowing how marijuana ended up in Schedule I in the first place. That history is far less familiar than it should be.

Cannabis is not killing 100,000 American annually, the number of opioid overdose and poisoning victims. So why does the federal government list it along with heroin, LSD and ecstasy, as a Schedule I narcotic, the most dangerous category of the Controlled Substance Act? It ranks ahead of lethal Schedule II drugs such as fentanyl and OxyContin.

Marijuana’s inclusion on Schedule I was not the result of medical studies or clinical testing. It was instead political payback from Richard Nixon, who was miffed that a commission he had appointed to study marijuana, returned with a recommendation to decriminalize the drug. In Pharma, I tell the story of how that happened from an insider’s perspective, the view of Michael Sonnenreich, then a young Department of Justice attorney. In 1969 Sonnenreich had singlehandedly rewritten the federal guidebook to the nation’s drug laws (Handbook of Federal Narcotic and Dangerous Drug Laws).

John Dean, later of Watergate notoriety, was then an associate deputy serving under John Mitchell, Nixon’s attorney general. Dean had been an associate staff director to LBJ’s National Commission on Reform of Federal Criminal Laws. After Sonnenreich had rewritten the drug law handbook, Dean asked him to meet with the attorney general.

What follows is an excerpt from Pharma about how marijuana ended up on the strictest drug schedule in America. An added bonus that it also includes the lobbying efforts of Arthur Sackler (yes, the same Sackler family as OxyContin infamy) for his client, Hoffman La Roche. Sackler wanted to keep Roche’s blockbuster benzos, Valium and Librium, off any of the Controlled Substance Act’s schedules.

Today’s move to Schedule III doesn’t erase the political origins of prohibition, but it does adjust a half-century-old policy rooted more in resentment than evidence.

When Sonnenreich and Mitchell met, he told the attorney general that the “drug laws are archaic” and the enforcement and regulatory framework was a confusing and sometimes contradictory hodgepodge of laws and amendments that had been cobbled together over the decades. In 1951 Congress instituted the first mandatory minimum sentences for drug convictions and barred probation for first offenses. Five years later a different Congress increased the minimum jail terms. In 1965, faced with a wave of unknown psychedelic drugs, it criminalized manufacturing or possessing those hallucinogens and gave HEW enforcement responsibility.

None of the laws addressed treatment, Sonnenreich told Mitchell. He believed it was not enough for reforms to curb supply. They should also cut the demand for drugs. Mitchell asked Sonnenreich if he would meet with Nixon.

“Of course, I’d be willing to talk to the president.”

A few days later in the Oval Office, Sonnenreich told Nixon about his idea for a commission to examine existing laws before making any final recommendations. Nixon liked that. Sonnenreich was transferred to the Bureau of Narcotics and Dangerous Drugs. There, as deputy chief counsel, he began drafting what would become the heart of the Controlled Substances Act. He established “schedules” by which drugs were listed, balancing their medical usefulness, if any, against their potential for abuse.

Sonnenreich was thirty-one years old and liked his work. He expected to spend his career in government service. “My wife and I were happy; we had no problem in wanting more. We did everything we wanted to do.… One day this guy comes in with some Roche people and he says to me that ‘If you schedule Librium or Valium, we’re gonna challenge this, we’re gonna challenge that.’”

It was Arthur Sackler. Sonnenreich had never heard of him.

“I welcome your challenge, it makes my day,” Sonnenreich replied.

Sackler again warned that Roche would battle any effort to restrict the sale of its drugs.

“I’m going to do something better,” said Sonnenreich. “I’m going to file an administrative action to put your drugs under control and put them on the three times prescription rule [a controlled substance limited to a maximum of three refills].”

When Sonnenreich later held that administrative hearing to determine whether Roche’s benzodiazepines should be covered in one of the Controlled Substances Act schedules, he recalls “they had all the big law firms there, the biggest D.C. powerhouses. They were wrong if they thought that might scare me. They didn’t understand I was having a good time. They had just irritated me so much. I was still getting paid the same $7,900 a year, it didn’t make any difference to me.” Sonnenreich and the Justice Department won the administrative action. “Arthur was obviously very, very upset,” he recalls.

Sonnenreich’s draft of the Controlled Substances Act was at the heart of sweeping reorganization legislation—the Comprehensive Drug Abuse Prevention and Control Act—that the Nixon administration submitted to Congress in early 1970.

In creating four schedules of “controlled substances,” Sonnenreich had in part relied on extensive research and guidelines set out earlier that year by the World Health Organization. The public initially misinterpreted those schedules to think the drugs were listed in order of danger. Sonnenreich had instead balanced the potential for abuse with whether a drug had “any currently accepted medical use.” Although Cicely Saunders was then praising heroin as an effective pain reliever at her London hospice, it was judged to have no medical benefit. There was grim evidence of its abuse between hospital admissions and deaths from overdoses. It, along with LSD and ecstasy, were on Schedule I. So was marijuana, although that was a political compromise. The assistant secretary of health had suggested it be placed there temporarily until Nixon appointed a commission to recommend a final status.

Cocaine, methamphetamine, oxycodone, and fentanyl at least had demonstrated medical uses—cocaine in dental surgery as a topical anesthetic—and were listed on Schedule II, although they had a risk of “severe psychological or physical dependence.” Drugs on Schedule III were those with recognized therapeutic benefits but with a moderate risk of “physical or high psychological dependence.” That is where Miltown, along with amphetamines and barbiturates, was put. Schedule IV was designed to include combination drugs that had a “low potential for abuse.”

What was notably missing from the statute sent to Congress was any mention of Librium and Valium. Sonnenreich had expected they would later be added to the same category as Miltown, the industry’s original mild tranquilizer. Roche, however, argued that could not happen while its judicial appeal of the FDA’s effort to regulate more strictly the benzos was still pending. A new round of administrative hearings attempted to settle the matter once and for all. Neil Chayet, the founder of the Law-Medicine Institute at Boston University and a member of the National Institute of Mental Health’s Narcotic Addiction and Drug Abuse Committee, appeared in hearings as “an expert in legal medicine.” He set forth Roche’s position: Valium and Librium were not “drugs of abuse in the usual sense.” Roche even presented eleven letters from police departments that stated that none had seen criminal problems associated with either Valium or Librium.

Roche’s lobbying worked. When Congress passed the law in the fall of 1970 it had a fifth grouping, what some called “the Roche schedule.” It covered drugs with the lowest potential for abuse, and it included Valium, Librium, and a few codeine-cased cough syrups that contained codeine.

As Congress debated the bill, Neil Chayet called Sonnenreich. The two had been Harvard law school classmates. Chayet said he did legal work for Arthur Sackler and suggested the next time Sonnenreich was in New York, Sackler would like to meet him “to discuss Roche’s drugs and federal oversight.”

“Why should I meet with that idiot?” Sonnenreich replied. (“Those are the types of things you say when you’re very young,” Sonnenreich told the author).

Shortly after that conversation, Sonnenreich visited New York. Chayet arranged a dinner at Sackler’s sprawling apartment at United Nations Plaza. The twin thirty-eight-story towers had opened only a couple of years earlier and had been designed by the same architects who did the United Nations. Sonnenreich knew it was home to some of New York’s most prominent families.

“We had dinner,” recalls Sonnenreich, “and during the discussion Arthur got frustrated and started yelling at me. Well, I don’t respond well to being yelled at and I yelled back. Marietta was there and she got up from the table and left the room. Neil sat there quietly. And Arthur and I went on arguing for several hours. I had all the confidence and cockiness of a young guy and I kept telling him he was an ‘old dog who didn’t know the new things that had to be done.’ He was trying hard to persuade me that I was wrong on the regulations. Neither of us convinced the other.”

The next day, when Sonnenreich was back at the Department of Justice, Sackler’s secretary called.

“I got on the phone.”

“You know I like you,” Sackler started. “I would like you one day, if you leave the government, to do some work for me. Think about it.”

“I am going to stay in the government,” Sonnenreich told him. “This is what I’m happy doing, this is where I’m staying.”

Sonnenreich’s career was moving fast. Nixon had embraced Sonnenreich’s idea of a national commission to study and recommend how the government should address marijuana. Going into private practice did not entice him.

The president appointed nine of the thirteen members on the National Commission on Marihuana and Drug Abuse. They included doctors, academics, psychiatrists, and attorneys. The congressional leadership appointed two U.S. senators, and two congressmen. Former Republican governor of Pennsylvania Raymond Shafer was its chairman (it was mostly referred to later as the Shafer Commission). Nixon tapped Sonnenreich to become the executive director, in charge of a staff of seventy-six.

Nixon expected that the conservative Republican majority with which he had stacked the Shafer Commission would return with an uncompromising finding about the dangers of marijuana. Instead, after eighteen months of testimony from dozens of experts, Sonnenreich and Shafer knew they had reached a conclusion that Nixon was not likely to embrace: they had not found evidence that marijuana was physically addictive, nor was it a gateway drug.

“When I told them at the White House what we were planning to say,” Sonnenreich told the author, “they thought I was crazy. They could not understand that we were going to recommend decriminalization.”

“You need to take marijuana out of the criminal justice system,” Sonnenreich argued in vain. “These young people are not criminals. You are degrading the criminal system. It can’t handle all of them.”

Sonnenreich was not a proponent of the drug but thought criminalizing it was the wrong solution. He pointed out when Nixon had come into office, the government “spent a total of $66.4 million for the entire federal effort in the drug abuse area.” That ballooned to $796.3 million by 1972, and for the next budget it would exceed $1 billion.

The administration hard-liners were furious with the interim report. They feared the public would interpret decriminalization as an endorsement for using marijuana. “From that moment on,” Sonnenreich told the author, “I was cut off from the White House.”

The Shafer Commission did not finish its final report, with 3,700 pages of appendices, until 1973. Nixon ignored its recommendations.¹

Excerpt from PHARMA: Greed, Lies, and the Poisoning of America, by Gerald Posner (pp. 254-259). Avid Reader Press / Simon & Schuster. Kindle Edition.

1. The Schedules were amended repeatedly even after Nixon signed it into law on October 27, 1970. They were regularly updated with drugs added or removed and others transferred from one schedule to another. Barbiturates, originally on Schedule III, were reassigned to the more stringent Schedule II in 1972. In 1973, when the DEA was created, it upgraded the benzodiazepines to Schedule IV and moved Miltown there.

The “temporary” placement of cannabis on Schedule I, along with heroin, LSD, and ecstasy, became permanent once Nixon refused to follow his commission’s decriminalization proposal. As anecdotal accounts accumulated over the decades that marijuana might have some medicinal properties, its advocates abandoned their effort to get it reclassified to a lower Controlled Substances schedule. Instead, starting in the 1990s a movement coalesced around legalizing medicinal marijuana. That opened the door for broader legalization arguments.