Controlled Substances Act of 1970

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CONTROLLED SUBSTANCES ACT OF 1970

Until 1970, psychoactive drugs were regulated at the federal level by a patchwork of statutes enacted since the turn of the century. These statutes were shaped by an evolving conception of congressional power under the U.S. Constitution. The first federal law on the subject was the Pure Food and Drug Act of 1906, which required the labeling of substances such as patent medicines if they included designated Narcotics (e.g., Opi-Ates and Cocaine) and were shipped in interstate commerce. In 1909, Congress banned the importation of smoking opium. Then in 1914, in the Harrison Narcotics Act, Congress deployed its taxing power as a device for prohibiting the distribution and use of narcotics for nonmedical purposes. (The taxing power was used because U.S. Supreme Court decisions implied that Congress would not be permitted to use its power to regulate interstate commerce in banning "local" activities, such as the production and distribution of narcotics.) The scheme established by the Harrison Act required the registration and payment of an occupational tax by all persons who imported, produced, or distributed narcotics; it imposed a tax on each transaction; and it made it a crime to engage in a transaction without paying the tax. Mere possession of narcotics without a prescription was presumptive evidence of a violation of the act. The Marihuana Tax Act of 1937 utilized the same model.

In 1965, Congress prohibited the manufacture and distribution of "dangerous drugs" (stimulants, depressants, and hallucinogens) for nonmedical purposes. By this time, Congress's constitutional authority to enact such legislation under the commerce clause was no longer in doubt. (In 1968, Congress made simple possession of the drugs a misdemeanor.) All important feature of the 1965 "dangerous drug" legislation was its delegation of authority to the secretary of Health, Education and Welfare (HEW) to control previously uncontrolled drugs if they had a "potential for abuse" due to their depressant, stimulant, or hallucinogenic properties. (In 1968, this scheduling authority was transferred to the U.S. attorney general.)

All this legislation was replaced by a comprehensive regulatory structure in the 1970 Controlled Substances Act (CSA). Under the new statutory scheme, all previously controlled substances were classified—in five schedules—according to their potential for abuse and accepted medical utility; an administrative process was then established for scheduling new substances, building on the model of the 1965 act. Schedule 1 lists drugs that have no traditional recognized medical use, such as Heroin, LSD, and cannabis (Marijuana). Schedule 2 lists the drugs with medical uses that have the greatest potential for abuse and dependence, such as Morphine and cocaine. The remaining schedules use a sliding scale that balances each drug's Abuse Potential and its legitimate medical uses.

Different degrees of control are applied to manufacturers, distributors, and prescribers—depending on the schedule in which the drug has been placed. The regulatory structure of the Controlled Substances Act is predicated on the assumption that tighter controls on legitimate transactions will prevent diversion of these substances and will thereby reduce the availability of these substances for nonmedical use.

The drafting of the Controlled Substances Act reflected a continuing controversy regarding the locus of administrative authority for scheduling new drugs and for rescheduling previously controlled drugs. Under the bill passed by the Senate, this responsibility would have rested with the U.S. attorney general, who was required only to "request the advice" of the secretary of HEW (now Health and Human Services, HHS) and of a scientific advisory committee; the attorney general was not required to follow this advice although the various criteria in the act require primarily scientific and medical judgments. The Senate rejected an amendment that would have made the recommendations of the "advisor" binding on the attorney general. Under the bill passed in the House of Representatives, however, the secretary's decision declining to schedule a new drug was binding on the attorney general, and the secretary's recommendation concerning rescheduling was binding as to its medical and scientific aspects. The House version prevailed in the 1970 law as it was finally adopted.

After enactment of the federal Controlled Substances Act, the National Conference of Commissioners on Uniform State Laws promulgated a Uniform Controlled Substances Act, which was modeled after the federal act. (Earlier state laws were modeled on the 1934 Uniform Narcotic Drug Act, which had also been promulgated by the National Conference.) Every state has enacted the Uniform Controlled Substances Act.

(See also: Anslinger, Harry J., and U.S. Drug Policy ; Controls: Scheduled Drugs ; Legal Regulation of Drugs and Alcohol )