The U.S. Department of Health and Human Services (HHS) says it has no record of a letter from the White House regarding President Joe Biden’s marijuana scheduling review directive, seemingly contradicting what the head of the Drug Enforcement Administration (DEA) recently testified to lawmakers.
At a House Judiciary Committee hearing last month, DEA Administrator Anne Milgram told Rep. Matt Gaetz (R-FL) that the president “had sent a letter to the secretary of HHS and to the attorney general to ask for the scheduling—descheduling process to begin.”
Attorney Matt Zorn filed a Freedom of Information Act (FOIA) request for a copy of that letter, and HHS sent him a response last week stating that it “conducted a search” that determined “there are no records responsive to your request.”
In an open letter published on his “On Drugs” Substack, Zorn implored Gaetz to “follow up with DEA” about the potential document, which could shed light on the opaque administrative process that is ongoing as federal agencies contemplate the appropriateness of marijuana being classified as a strictly illegal Schedule I drug under the Controlled Substances Act (CSA).
It is possible, of course, that Milgram misspoke when she described a letter from the president. A DEA spokesperson did not directly respond to Marijuana Moment’s request for clarification about the letter, but simply pointed to the president’s October statement about the scheduling review directive and referred further questions to the White House.
But the question of the technical origins and processing of the scheduling review directive remain of significant interest within the cannabis space and broader public. Both the Department of Justice, which DEA falls under, and HHS appeared to have coordinated statements prepared on the day that Biden called for the review, and issued a mass pardon for people who’ve committed federal marijuana possession offenses. That would suggest that the agencies received some kind of advance notice before the president made the public declaration.
“There are aspects of this process that the public doesn’t need to, and probably shouldn’t, be privy to,” Zorn told Marijuana Moment on Thursday. “But the basic milestones like the document that starts the process, we should be able to examine. Congress should have it, the public should have it. That’s not asking too much.”
While HHS said its internal search for documents responsive to the FOIA request came up dry, it’s possible that the date range of the request—from September 1, 2022 to March 1, 2023—was too narrow. Biden publicly issued the directive and pardons on October 6, 2022, but it could be the case that the White House began notifying agencies about the future action months before he made the announcement.
The current status of the administrative review into cannabis scheduling is unclear, though HHS Secretary Xavier Becerra did tell Marijuana Moment in June that agencies are aiming to complete their work by the end of the year. Milgram also told Gaetz during last month’s hearing that she would ask HHS for an update on the timing of their review.
The process starts with a scientific review into marijuana by HHS—and specifically the Food and Drug Administration (FDA) under HHS. Once that’s complete, the department will forward its findings and scheduling recommendation to DEA, which will then conduct its own eight-step review before making a final decision. The recommendation from HHS is not binding, as DEA has primary jurisdiction over the CSA and could theoretically dismiss the health agency’s position.
Meanwhile, the White House drug czar said in separate congressional testimony recently that the president’s marijuana pardons and scheduling directive last year are part of an effort to create cohesive cannabis policy within a patchwork of state legalization models.
Congressional Cannabis Caucus co-chair Rep. Earl Blumenauer led a letter to Becerra and Attorney General Merrick Garland in March, alongside 15 other bipartisan members of Congress, demanding transparency in the cannabis scheduling review.