State AGs And Former DEA Leaders Push Agency To Hold Public Hearing On Marijuana Rescheduling Proposal

In a filing with the federal government ahead of a key deadline this week, a group of former Drug Enforcement Administration (DEA) leaders is asking the agency to hold a public hearing on the proposal to reschedule marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA)—saying that the move is “likely the most consequential rulemaking DEA has ever attempted.”

A group of 18 state attorneys general also filed a similar request.

“Given the magnitude of the impact of the proposed rule and considering we face an unprecedented drug overdose crisis in this country,” said the group of six former DEA administrators and three former acting administrators, “we write to emphasize that a hearing on this rulemaking is in the public interest.”

“A public hearing is in the public interest, and therefore in the interest of our states,” added the attorneys general, led by South Carolina AG Alan Wilson (R). Others who signed on represent Alabama, Arkansas, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, South Dakota, Texas and Wyoming. All are Republicans.

The groups’ asks came ahead of a deadline Thursday to file comments requesting that DEA hold a hearing on the rescheduling proposal.

“As DEA made clear in the Proposed Rule, additional data and rigorous scientific analysis is needed to determine whether marijuana is appropriately placed into Schedule III,” the former drug enforcement officials wrote. “Sifting through the competing claims about marijuana’s pharmacological effects, potential for abuse, and implications for public safety, are best done at a hearing.”

They assert that the rescheduling recommendation “proposes to change the definition of currently accepted medical use, as well as change the way the federal government implements our international treaty obligations.”

The requests, which comes on the heels of a leading prohibitionist group attempting to extend the public comment period on the rescheduling proposal, are seen by reformers as a way not only to push back on the Biden administration’s rescheduling plan but also to potentially delay the formal implementation of the action amid an effort by opponents to shoot it down.

The anti-legalization organization, Smart Approaches to Marijuana (SAM), also asked for an administrative hearing on the move, arguing that the rescheduling proposal “fails to consider research demonstrating that marijuana plays a causal role in the development of psychosis, including schizophrenia, in certain individuals.”

SAM has for years denied that cannabis itself offers any appreciable medical benefit outside of limited therapeutic uses of some of its components in federally approved pharmaceutical drugs.

The group has also argued that the 60-day public comment window on rescheduling that opened late last month should be extended by another 30 days.

SAM’s requests were submitted by Torridon Law PLLC, a firm founded by former Attorney General Bill Barr, who led the Department of Justice (DOJ) under the Trump administration and who faced criticism after initiating investigations into cannabis industry mergers that were described as improper.

SAM’s comment to DEA—one of more than 20,000 that have been posted so far—says DOJ’s proposed rule to move marijuana from Schedule I to Schedule III would be “the most significant relaxation of restrictions on a psychoactive substance” since CSA became law.

SAM officials said at a webinar last week that it is weighing “all legal options” to challenge the proposed cannabis move, while encouraging supporters to oppose the pending change.

Overwhelmingly, those who’ve so far requested that DEA hold a hearing on the proposed move are opponents to the reform. Others include the Drug Enforcement Association of Federal Narcotics Agents, the Tennessee Bureau of Investigation and the International Academy on the Science and Impact of Cannabis, which focuses on harm caused by marijuana.

One reform proponent who’s requested a hearing on rescheduling is attorney Khurshid Khoja, of Greenbridge Corporate Counsel PC. Khoja argues in his letter to DEA that the rescheduling change would, among other things, “sweep currently non-scheduled cannabinoids,” such as THCV and THCA, into Schedule III.

National advocacy groups in support of marijuana reform, meanwhile, such as the Drug Policy Alliance (DPA), Marijuana Policy Project (MPP), NORML and National Cannabis Industry Association (NCIA), told Marijuana Moment they do not plan to request a hearing ahead of Thursday’s deadline.

Separate from the request for a hearing, the public has until July 22 to submit comments on the overall rescheduling proposal.

Rescheduling opponents have also amplified rumors that current DEA officials might oppose the proposed change—rumors that a top Biden administration official appeared to acknowledge this month.

In early May, SAM President Kevin Sabet said he’d heard rumors that DEA Administrator Anne Milgram “did not sign off” on the landmark decision, suggesting that the agency wasn’t on board. As it turned out, Milgram did not put her name on the proposed rescheduling rule, leaving it to Attorney General Merrick Garland to sign the document.

GOP lawmakers in Congress questioned Milgram about the matter during a hearing, but she replied it would be “inappropriate” to comment.

As for what happens next, SAM is holding out hope that DEA could reject the rescheduling recommendation or, alternatively, move marijuana to Schedule II. Sabet pointed to interpretations of international law, for example, that read drug treaties as prohibiting any move outside of Schedules I and II.

While DOJ will take all public comments submitted by July 22 into consideration as it weighs the reform, it said in the notice that one of the topics its especially interested in hearing about is the “unique economic impacts” of the rescheduling proposal given that state-level legalization has created a “multibillion dollar industry” that stands to benefit from possible federal tax relief under the reform.

Indications that DEA might not be on board came alongside the rescheduling move itself, with the proposed rule in the Federal Register noting several times that the agency believes “additional information” needs to be collected via public comment or a possible administrative hearing could influence the final scheduling decision.

“DEA has not yet made a determination as to its views of the appropriate schedule for marijuana,” the document said.

Even before the formal announcement, it had been reported that certain DEA officials had been “at odds” with the Biden administration over the rescheduling push.

Asked about the status of the proposed move of cannabis to Schedule III of the Controlled Substances Act at a recent event in Sacramento, HHS Secretary Xavier Becerra said his agency made its recommendation based on available science and evidence.

Asked whether there was resistance at DEA, he responded, “Talk to the DEA.”

“Our scientists reviewed the evidence,” Becerra added. “FDA bases its action on the science and the evidence before us. We took action.”

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Photo courtesy of Philip Steffan.