Federal Health Officials ‘Rejected’ DEA’s Request To Testify At Marijuana Rescheduling Hearing, Agency Tells Judge

The U.S. Department of Health and Human Services (HHS) “rejected” a request from the Drug Enforcement Administration (DEA) to provide witnesses for an upcoming hearing on the Biden administration’s marijuana rescheduling proposal, the drug agency says.

In a prehearing statement submitted to DEA Administrative Law Judge John Mulrooney on Tuesday, the agency also previewed the testimony its own witnesses plan to provide—without clarifying where it stands on the proposed rule to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA).

The two witnesses DEA plans to call are both agency officials. One, Heather Achbach, will speak to the rulemaking process the led up to the hearing, while the other, Luli Akinfiresoye, will “provide data, studies and other information” on issues such as marijuana-related seizures, emergency room visits, THC potency and “public safety risks” associated with cannabis.

HHS, which carried out the scientific review that led to the rescheduling proposal, declined DEA’s invitation to have any of its staff show up to testify.

“DEA made a request to [HHS] and its operating division, the Food and Drug Administration (FDA), to provide witnesses to testify before the Tribunal regarding the scientific and medical evaluations in the HHS Eight Factor analysis that is the basis for the Notice of Proposed Rulemaking, including the novel two factor test applied by HHS for determination of “currently accepted medical use,” DEA said.

“HHS rejected DEA’s request for witnesses from HHS (or its operating divisions),” it said. “In the event DEA determines it is necessary to subpoena a witness or witnesses from HHS (or its operating divisions), DEA respectfully requests to reserve the ability to add that witness in a supplemental filing.”

It’s not clear why HHS declined to provide witnesses. Marijuana Moment reached out to the department for comment, but a representative was not immediately available.

One of DEA’s witnesses, Akinfiresoye—a pharmacologist with the agency’s Diversion Control Division—will testify on a number of items, including how the proposed rule “specifically seeks additional data upon which DEA can rely in making its determination as to whether marijuana should be rescheduled.”

That’s a reference to the multiple times through the notice of proposed rulemaking (NPRM) that DEA declined to endorse various scientific findings to justify rescheduling, which has led some observers to conclude that the agency disagrees with the proposed reform.

“Dr. Akinfiresoye will testify that DEA has maintained an active review of the scientific, medical, and technical literature addressing marijuana with a focus on how it relates to the eight factors relevant to the control under the CSA,” the agency said in the new filing. “Dr. Akinfiresoye will testify regarding information within DEA’s current state of knowledge,” including “additional factual evidence.”

“Dr. Akinfiresoye will also testify that she is aware that the NPRM specifically seeks additional data upon which DEA can rely in making its determination as to whether marijuana should be rescheduled. Dr. Akinfiresoye will testify that, in her role with DEA, she and her DOE colleagues, regularly review the available scientific, medical, technical, and abuse-related information regarding controlled substances. In that role, Dr. Akinfiresoye will testify that DEA has accumulated and continues to accumulate data, studies and other information regarding marijuana. Dr. Akinfiresoye will testify that DEA has maintained an active review of the scientific, medical, and technical literature addressing marijuana with a focus on how it relates to the eight factors relevant to the control under the CSA. Dr. Akinfiresoye will testify regarding information within DEA’s current state of knowledge, including the additional factual evidence noted above.”

Topics that Akinfiresoye will cover include marijuana’s potential for abuse, pharmacological effects, the “state of current scientific knowledge,” history and current patterns of abuse, the significance of that abuse, public health risks and psychic or physiological dependence liability.

“The Government is still compiling documentation for this Matter and anticipates additional exhibits,” it said. “The Government will provide an updated and accurate exhibit list in a supplemental filing at a date set by this Tribunal.”

The initial preliminary hearing is scheduled for December 2. The merit-based proceedings were delayed until at least early 2025 after Mulrooney, the DEA ALJ, notified the agency that it provided insufficient information about the 25 selected witnesses that Administrator Anne Milgram submitted.

The prehearing statement from DEA remains ambiguous as it concerns the agency’s position on rescheduling. While it is statutorily designated as the “proponent” of the proposed rule, there’s skepticism about DEA’s actual stance.

In a historic first, it was Attorney General Merrick Garland—and not DEA’s Milgram—who signed the proposed rule to reschedule cannabis. And in a motion submitted by an attorney representing pro-rescheduling witnesses, it was argued that that fact, DEA’s apparent indecision on the rule and alleged “unlawful” communications with an anti-marijuana witness during the rescheduling process mean DEA should be removed as the proponent in this proceeding.

In response briefs filed with the ALJ on Monday, DEA and Smart Approaches to Marijuana (SAM) categorically denied the allegations that they illegally conspired together.

Separately, the judge last week denied a request from a cannabis and psychedelics researcher to postpone the upcoming rescheduling hearing over the agency’s alleged “improper blocking” of witnesses, while arguing that the process should be halted at least until President-elect Donald Trump’s administration comes into power so it can review the rulemaking.

Mulrooney also rejected a veterans group’s petition to participate in the rescheduling hearing, which the organization called a “travesty of justice” that excludes key voices that would be affected by the potential policy change.

For what it’s worth, Vice President Kamala Harris said recently that part of the reason for the delay in the administration’s marijuana rescheduling effort is federal bureaucracy that “slows things down,” including at DEA.

In March, Harris also expressed some frustration with the bureaucratic process of rescheduling marijuana, prior to DOJ’s formal recommendation, calling on DEA to expediently finish the job.

While the Biden–Harris administration facilitated the review that led to the DOJ rescheduling proposal, Trump has also voiced support for the reform.

In Congress, numerous lawmakers have shared their own perspectives on the proposed reform with DEA and DOJ since the Schedule III announcement was made.

In August, for example, Sen. Chuck Grassley (R-IA) raised concerns about the Biden administration’s justification for recommending marijuana rescheduling, demanding answers to questions from federal agencies about how they arrived at that decision in what he described as a rushed and unconventional administrative process.

A week earlier, top Democratic senators—including  Senate Majority Leader Chuck Schumer (D-NY)—sent a separate letter to DOJ’s Garland and DEA’s Milgram urging the agencies to ”promptly finalize” the rule to reschedule marijuana.

While rescheduling would remove certain research barriers and free up state-licensed cannabis business to take federal tax deductions under the Internal Revenue Service (IRS) code known as 280E, it would not federally legalize marijuana, as the Congressional Research Service (CRS) has made known in multiple recent reports.

Meanwhile, two additional congressional lawmakers have joined the ranks of GOP members who are challenging what they say is the “unusual” process that led the Biden administration to propose rescheduling marijuana, expressing concern about how the review was carried out and demanding answers.

Rep. Doug LaMalfa (R-CA) condemned the Biden administration’s push to reclassify marijuana, as well as legislative efforts to enact bipartisan cannabis banking reform, because he says the policy changes would “prop up this immoral industry” and give a “green light to the evil that comes from drug use.”

Sen. Bill Cassidy (R-LA) also blasted the Biden administration over what he described as repeated refusals from federal agencies to brief Congress on its plans and justification for rescheduling marijuana, which he argues fuels speculation that the proposed policy change is politically motivated.

Similarly, 25 GOP congressional lawmakers sent a public comment letter in July opposing the administration’s planned rescheduling of marijuana, specifically alleging the government’s recommendation was based on politics rather than science.

Read DEA’s prehearing statement for the marijuana rescheduling hearing below: 

Photo courtesy of Philip Steffan.