Judge Whipple continued in relevant part: And N.J.A.C. 13:45H-10.1(b) notes that “any reference in this chapter to controlled dangerous substance Schedules I, II, III, IV and V shall mean the Federal schedules promulgated at 21 C.F.R. §§ 1308.11 through 1308.15 . . . unless the Director objects . . . in accordance with . . . N.J.S.A. 24:21-3 and N.J.A.C. 13:45H-1.7.” Therefore, alpha-PVP was automatically included in Schedule I because the Director did not object to the federal government’s designation.
Defendant’s reliance on Kadonsky v. Lee, 452 N.J. Super. 198 (App. Div. 2017) does not compel a different conclusion. In that case, an inmate filed a petition with the Director seeking to have marijuana reclassified from Schedule I to Schedule IV in light of the New Jersey Compassionate Use Medical Marijuana Act. Id. at 200. The Director rejected the petition, claiming he had no authority to reschedule marijuana in a manner inconsistent with federal law. Id. at 200-01. We reversed the Director, explaining that N.J.S.A. 24:21-3 permits the Director to diverge from the federal schedule after weighing the factors in N.J.S.A. 24:21-3(a). Id. at 208-09. Although there appears to be tension between subsection (a), which affords the Director the authority to schedule substances, and subsection (c), requiring the Director to control substances coextensively with federal law, the statute does not prohibit the Director from revisiting a classification and departing from the federal government’s schedule. Id. at 209 (“We conclude that the Director erred in determining he lacked the authority to reclassify marijuana without a change in existing federal law.”). Therefore, while federal regulation provides a CDS scheduling baseline, N.J.S.A. 24:21-3 does not prohibit the Director from either objecting to a federal classification or rescheduling a substance.
Notably, the Kadonsky court did not suggest the Director must republish updated CDS schedules each and every time the federal government revises its own schedules. Rather, the Director need only provide notice when he or she “objects to the federal government’s inclusion, rescheduling, or deletion” of a CDS and to “periodically” “update and republish the schedules.” In this case, the Director was not obligated to provide notice that alpha-PVP was added to Schedule I the moment it became a CDS. And, for that reason, the judge properly denied defendant’s motion to dismiss the indictment.
The federal government’s refusal to re-classify marijuana consistent with overwhelming evidence that it has at least some medicinal benefits is disgraceful. It is increasingly clear that the federal classification is rooted in lobbying by those who benefit from prohibition as opposed to science.