Speaker 1: President Joe Biden’s administration recently made history by moving to reschedule marijuana from a Schedule I to a Schedule III controlled substance. But is that the same as legalization? And will it give professional truck drivers new options with the country’s favorite illicit drug?
The answer to both questions is a flat no.
In this installment of Overdrive’s Trucking Law series, two attorneys with close knowledge of marijuana legislation and regulation look at what’s happening with the drug and how it could impact trucking. In the process, we get an up-close look at rules and regulations keeping drivers from taking the same approach to the drug as fellow citizens, complete with all the wrinkles and well, obscuring smoke, that entails.
First, a warning.
In trucking, it seems that almost every time a state legalizes medicinal or recreational marijuana, or a cannabis-related product manufacturer mislabels their goods, or a new type of cannabis product hits the shelves … people make mistakes and careers get ruined. Hard-luck tales of CDL drivers abound. Often, it’s a situation of mistakenly ingesting THC, the active, intoxicating and federally illegal component of marijuana, thinking it was CBD — a legal, non-psychoactive supplement that’s helped many with pain and anxiety.
Still, in the face of the rule change and plenty uncertainty, neither the Federal Motor Carrier Safety Administration nor the Commercial Vehicle Safety Alliance are yet ready to comment on how potential marijuana rescheduling might impact regulatory compliance, safety, drug testing and roadside inspections.
As such, we spoke to Brian Vicente, a leading attorney specializing in marijuana policy and regulation, to figure out exactly what rescheduling would mean.
Vincente pointed out that, since the 1970s, cannabis has been a Schedule I drug according to the federal government. That Schedule I status puts it alongside drugs like heroin, LSD, and ecstasy. “That means it has no medical value and a high potential for abuse,” according to Vicente.
The Biden DEA’s moves toward rescheduling cannabis to a Schedule III controlled substance, the attorney added, would put it in a category of drug with “a known medical value and lower standard for abuse.”
Rescheduling marijuana to Schedule III alongside drugs like Ketamine and barbiturates doesn’t mean it will be out-and-out legal. It’s only a single move in that vague direction, and the next step is one trucking knows well — the administrative rulemaking process.
The official proposed rule is currently up for comment through at least July 22, 2024. Find a link to it in the description of this video.
As Vicente described it, the rulemaking process will allow people from across America to comment and quote “litigate this issue, of whether cannabis has medical uses.” For now, even if the move survives this stage of federal review, marijuana still doesn’t become legal generally, and still presents a lot of problems for OTR truck drivers and their careers. Vicente called rescheduling a symbolic move, one the federal government is taking toward broader legalization.
If marijuana does get rescheduled, furthermore, the process to get a valid marijuana prescription is not something that will happen overnight.
Interested companies can then move through clinical drug trials, which take years. That’s despite the fact that many people are already using cannabis in 24 states where it’s legal for recreational use, and 40 states that allow medical marijuana use. In some medical use states, local medical authorities can hand out prescriptions for marijuana pretty liberally, but don’t expect that to be the case when it goes federal.
Rescheduling invites a review of any newly developed drugs from the Food and Drug Administration. Vicente speculated that when and if big companies find a way through the clinical process to support prescription for some type of cannabis, then truck drivers could potentially get that prescription.
Yet professional drivers are going to need more than a prescription, perhaps even a letter from their medical examiner saying the drug will not impact their driving. Federal regulations generally require docs’ signoff for use of any scheduled controlled substance. Vicente didn’t like the chances for FDA approval of medical use of the substance in its current state, either, noting FDA’s process isn’t focused on getting botanical drugs to market, he said. Generally, they’re approving pills that are pharmaceutically created.
The Biden administration isn’t the only branch of government with ideas about marijuana. Senate Democrats introduced a bill that would deschedule it entirely just one week after Biden announced the move toward rescheduling. That would remove marijuana’s “controlled substance” status altogether, but once again, that wouldn’t change much for trucking.
Paul Armentano, deputy director of the National Organization for Reform of Marijuana Laws, threw cold water on that bill being some kind of quote unquote “legalization” itself.
Instead, the bill would simply repeal the federal prohibition on marijuana, much like when legislation repealed the short-lived prohibition on alcohol nearly a century ago. Armentano compared quote unquote “legalized” weed under this bill to alcohol or tobacco. Neither substance is “scheduled” as a controlled substance by the feds, and instead they’re each governed by a 50-state patchwork system.
Today, marijuana use is disqualifying for CDL holders not because of its federal schedule or criminalization, but because it was included among the drugs to be tested for under the DOT’s Revised Drug and Alcohol Testing Rule in 1988, he pointed out. Neither rescheduling nor descheduling would remove it from the testing regimes.
For that to change, the regs would need to be revisited by either the DOT or by Congress, and a decision would have to be made.
Any change would have to grapple with the question of testing. Unlike other drugs (heroin, cocaine, and meth, for instance) which can become undetectable in the urine in just days, marijuana can linger around in fat cells for more than a month and be detected. Many in trucking have pointed out the need for some kind of quote unquote “weed breathalyzer,” but experts agree that’s not likely to happen roadside anytime soon.
For more discussion of what exactly makes a driver too impaired to drive, follow links in the video description to read about possible futures for drug testing for equipment operators.
Otherwise, drivers, stay away. If you hear some rumor about marijuana becoming legal as a result of rescheduling, push back. You’re more likely to legally pull a reefer full of marijuana-infused soda cross country than to pull on a joint without fear of career repercussions for the next several years.
