DEA Schedules Hearing On Marijuana Rescheduling, Delaying Reform Until After Election

The Drug Enforcement Administration (DEA) has scheduled a hearing to consider differing expert opinions on the Justice Department’s proposal to federally reschedule marijuana—an extra procedural step that will take place after the November election.

After moving to reclassify cannabis as a Schedule III drug under the Controlled Substances Act (CSA) back in March, DOJ opened a 60-day public comment period that saw more than 4o,000 submissions. Now that DEA has reviewed the comments, it agreed to an administrative hearing, as requested by several supporters and opponents of the reform.

The hearing will be held on December 2, according to a notice set to be published in the Federal Register on Thursday.

While some advocates and stakeholders had hoped that DEA would avoid this additional step and simply move to final rulemaking, the agency has often scheduled hearings for regulatory proposals of major public interest. And rescheduling cannabis for the first time since it was designated as Schedule I over 50 years ago evidently met that standard.

That said, the hearing adds some uncertainty about the potential rescheduling timeline. There are some concerns this means the rulemaking process will not be completed before January, which could mean an administrative changeup after the November election that theoretically could affect the rescheduling process.

DEA’s latest filing notes that the proposed rulemaking notice that was issued in March said that, “if the transfer to schedule III is finalized, the regulatory controls applicable to schedule III controlled substances would apply, as appropriate, along with existing marijuana-specific requirements and any additional controls that might be implemented, including those that might be implemented to meet U.S. treaty obligations.”

“If marijuana is transferred into schedule III, the manufacture, distribution, dispensing, and possession of marijuana would remain subject to the applicable criminal prohibitions of the CSA. Any drugs containing a substance within the CSA’s definition of ‘marijuana’ would also remain subject to the applicable prohibition in the Federal Food, Drug, and Cosmetic Act (FDCA).”

DEA also laid out next steps in the process, explaining that interested parties that may be “adversely affected or aggrieved” by the policy change must submit a notice of intent to participate in the hearing to the agency within 30 days of the formal publication of this filing.

The notice was signed by DEA Administrator Anne Milgram, who notably did not sign the initial proposed rescheduling rule. She said that after the agency received notices of intent to participate in the hearing, she will “assess the notices submitted and make a determination of participants.”

“Following that assessment, I will designate a presiding officer to preside over the hearing,” Milgram said. That presiding officer “will have all powers necessary to conduct a fair hearing, to take all necessary action to avoid delay, and to maintain order.”

“The presiding officer’s authorities include the power to hold conferences to simplify or determine the issues in the hearing or to consider other matters that may aid in the expeditious disposition of the hearing; require parties to state their position in writing; sign and issue subpoenas to compel the production of documents and materials to the extent necessary to conduct the hearing; examine witnesses and direct witnesses to testify; receive, rule on, exclude, or limit evidence; rule on procedural items; and take any action permitted by the presiding officer under DEA’s hearing procedures and the APA.”

DEA has already made clear that it feels additional information is needed on a number of topics related to the scientific review into marijuana that led to the reclassification recommendation. Some view the scheduling of the hearing as more evidence of DEA skepticism.

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 Attorney General Merrick Garland and DEA Administrator Anne 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.

At the Republican National Committee convention last month, multiple GOP lawmakers spoke with Marijuana Moment about their own views on how cannabis policy issues such as rescheduling could be impacted if former President Donald Trump wins the November election. They generally deferred to the nominee, but there were mixed opinions about what they would like to see happen.

Rep. Andy Harris (R-MD), for his part, said at the event that “I don’t care” whether rolling back the Biden administration’s marijuana rescheduling move under a potential Trump presidency would hurt the Republican party, because he feels more strongly that the modest reform would endanger public health.

Also, bipartisan congressional lawmakers are seeking to remove a controversial section of a spending bill that would block the Justice Department from rescheduling marijuana—one of several cannabis- and psychedelics-related amendments to appropriations legislation.

GOP senators have separately tried to block the administration from rescheduling cannabis as part of a standalone bill filed last September, but that proposal has not received a hearing or vote.

Meanwhile, in one public comment on the proposed rule, a group representing state-level cannabis regulators recently called on the Biden administration and DEA administrator to provide a clear explanation of how rescheduling marijuana would affect federal enforcement priorities and the U.S. government’s interaction with jurisdictions that regulate cannabis products.

A series of recent polls shows widespread majority support for marijuana legalization,  rescheduling and cannabis industry banking access among likely voters in three key presidential battleground states: Michigan, Pennsylvania and Wisconsin.

DEA Says It Can Still Arrest People For Marijuana Regardless Of State Legalization, But It’s ‘Not Our Intent’ To Go After Possession Cases