On April 28, 2026, the Attorney General of the United States, relying on international treaties, authorized medical use of cannabis, but only for state licensed medical marijuana businesses that apply for a new federal registration, Final rule, 91 FR 22714. Hearings will be held beginning on June 29, 2026 and concluding not later than July 15, 2026 on whether to reclassify cannabis for both authorized and unauthorized use, the same way prescription drugs are classified, Notice of hearing on proposed rulemaking, 91 FR 22777. For now, and unlike anything else, cannabis is split into two different schedules, Schedule 3 for authorized use and Schedule 1 for unauthorized use:
- Cannabis will be in Schedule 3 for state licensed medical marijuana businesses that obtain a new federal registration under 21 C.F.R. § 1301.13(k). State registered medical users will be in compliance with federal law if they buy cannabis products from one of these businesses.
- Cannabis will remain in Schedule 1 for state licensed medical marijuana businesses that do not obtain this new federal registration, and state registered medical users will continue to be in violation of federal law, Schedule 1, if they buy cannabis products from one of these businesses.
- Cannabis will remain in Schedule 1 for all non-medical marijuana businesses and they will not be able to obtain this new federal registration. Adults who buy these cannabis products will continue to be in violation of federal law, Schedule 1.
- Cannabis will remain in Schedule 1 for personal cultivation in the states that currently authorize homegrown.
The Attorney General has applied a narrow interpretation of the international treaties under 21 U.S.C. § 811(d)(1) to limit production and manufacture to medical and scientific purposes. The international treaties have much broader exceptions in them for constitutional limitations and domestic law, which includes state authorized personal use of cannabis, not just medical or scientific use.
When the federal drug law was enacted, the Commission on Marihuana and Drug Abuse was created to review the classification of cannabis, Public law: 91-513, § 601, 84 Stat. 1236, 1280-1281. The commission reviewed the international treaties and found that international obligations do not require maintenance of a possession penalty. Marijuana: A Signal of Misunderstanding, First Report of the National Commission on Marihuana and Drug Abuse, March 1972, at page 165:
Nowhere in the Convention are its Parties expressly required to impose criminal sanctions on possession for personal use.
The Attorney General cited obligations under 21 U.S.C. § 811(d)(1) (Single Convention on Narcotic Drugs, 1961, and Convention on Psychotropic Substances, 1971) to create a federal registration for state authorized businesses and to bypass the scheduling procedures in 21 U.S.C. § 811(a) and 21 U.S.C. § 811(b). But those treaties provide greater protection.
The Attorney General ignored Article 36 of the Single Convention and Article 22 of the Psychotropic Convention which are exceptions for “constitutional limitations” and “domestic law.” Domestic laws are state laws that give people the right to grow cannabis, and constitutional limitations are why the federal government does not have the power under the U.S. Constitution to stop the states from authorizing the personal cultivation of cannabis.
While federal law is the supreme law of the land, federal law includes an express recognition of state sovereignty, 21 U.S.C. § 903, and an explict process for making exceptions, 21 U.S.C. § 822(d). It is well settled that the federal government cannot force states to enact or enforce laws criminalizing the same conduct those states have chosen to authorize. See New York v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898 (1997).
The Attorney General’s final rule lacks respect for state sovereignty and individual liberty that federalism requires. The Attorney General has the power to waive registration requirements under 21 U.S.C. § 822(d) (“consistent with the public health and safety”) and 21 U.S.C. § 903 (“application of state law”). The Attorney General cannot deny such a request without persisting a positive conflict between state and federal law that would not otherwise exist if the Attorney General granted the request.
A solution exists in 21 U.S.C. § 811(a). Any interested party can ask for a new rule. I requested a new rule to make an exception for state authorized cultivation of cannabis for personal medical use, to be inserted immediately following the current rule that says church members consuming peyote are exempt, 21 C.F.R. § 1307.31.
States began authorizing personal cultivation of cannabis in 1996. The federal administration expressed a preference for a state regulated business model in 2013. See U.S. Department of Justice Memorandum, Guidance Regarding Marijuana Enforcement, August 29, 2013. But twenty-five states continue to authorize personal cultivation of cannabis. See Marijuana Policy Project, Map of States Allowing Home Cultivation of Cannabis, July 2025. Personal cultivation should be federally exempt because state laws authorize it. State law is sufficient to determine legality. While the federal administration is currently initiating these new changes top down, now is the right time to seek protection for personal cultivation authorized by state law.
Congress has been suspending criminal enforcement against state authorized medical use of cannabis continuously since 2015. Congressional Research Service, Funding limits on Federal Prosecutions of State-Legal Medical Marijuana, December 5, 2024. The Attorney General of the United States is currently reclassifying cannabis to a less restrictive category directly in response to these state laws. Drug Enforcement Administration, Rescheduling of Marijuana, Docket ID: DEA-2024-0059. Congress could easily stop suspending criminal enforcement now that commercial use is authorized, leaving state authorized personal cultivation of cannabis completely unprotected.
The Commission on Marihuana and Drug Abuse recommended removing the criminal penalties for possesson and sharing of cannabis in 1972. Marijuana: A Signal of Misunderstanding, First Report of the National Commission on Marihuana and Drug Abuse, March 1972, pp. 152, 154. It is time to take that recommendation seriously.
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