Politics
DEA Judge Pauses Marijuana Rescheduling Hearing As Opponents Highlight Government Report Detailing ‘Gaps’ In Federal Processes
A Drug Enforcement Administration (DEA) judge is pausing proceedings in an ongoing hearing on the Trump administration’s marijuana rescheduling proposal and asking asking agency officials and other participants to weigh in after a federal watchdog issued a report finding that there are “gaps” in the government’s process for evaluating controlled substances.
DEA Chief Administrative Law Judge Derek Julius on Tuesday issued a stay in response to a motion from a drug testing industry association and other participants who want a recent Government Accountability Office (GAO) report on drug scheduling to be entered into the record for the hearing, which took testimony in June and July.
Until now, the only expected remaining step in the proceedings was for Julius to issue his own recommendation on marijuana rescheduling to the DEA administrator, who would then make a final determination on the policy.
But the judge granted the motion for a stay filed by the National Drug and Alcohol Association (NDASA), DUID Victim Voices and Kenneth Finn, M.D.—parties opposed to cannabis rescheduling that participated in the hearing and who now want the GAO report included as part of the record.
That report found, among other things that DEA “does not have any policies or procedures regarding how its staff are to conduct evaluations or schedule substances” and the Food and Drug Administration “does not have policies or procedures specifying how its staff are to conduct evaluations or develop scheduling recommendations for substances.”
Julius said he “finds merit in this argument that, if the record were to be extended to also include the GAO Report, a stay would be warranted to await briefing on it.”
“Likewise, while considering the merits of the instant Motion to add the GAO Report to the record and allow supplemental briefing, a stay is warranted for the same reasons,” his order on Tuesday said. “Accordingly, based on the nature [of] this Motion, it is ORDERED that this matter is STAYED pending the Motion’s resolution.”
The judge is ordering DEA to file a response of up to 20 pages in length on whether the hearing record should be reopened to include the GAO report by October 13.
Other parties in the hearing are “permitted, but not required, to file responses” with the same specifications, Julius’s order said.
The anti-rescheduling groups that requested the stay wrote in their motion that the government’s case to move marijuana to Schedule III is based on an evaluation that is “only as good as the process that produced it.”
“The GAO Report is an independent audit of that process,” the motion said, arguing that the watchdog’s findings show that “the Government therefore lacks written criteria for a finding it must make to move marijuana to Schedule III.”
Attorney General Todd Blanche in April issued an order that immediately reclassified state-licensed medical cannabis, as well as marijuana products approved by the Food and Drug Administration (FDA) from Schedule I of the Controlled Substances Act (CSA) to Schedule III.
Under a separate order he signed, the DEA hearing was held to consider more comprehensively moving marijuana to Schedule III.
“The Government is not putting forth any evidence to suggest that marijuana is not dangerous. All controlled substances by definition are dangerous,” James Schwartz, a DEA attorney, said on the opening day of the hearing, according to the transcript. “That is why they are scheduled in the first place. However, controlled substances must be evaluated by the risks they pose balanced with the medical use they provide.”
“The proposed rule, the supporting documents, and the Government witnesses will establish that marijuana has a currently accepted medical use,” he said. “With that determination, marijuana can no longer remain in Schedule I.”
The federal agency, which was charged with defending the proposed rescheduling move, said in its brief that “marijuana no longer fits the statutory requirements for Schedule I because it has a currently accepted medical use within the United States and it has an accepted safety for its use under medical supervision.”
The agency noted that under the law it must give “significant deference” to an “extensive ten-month study on the scientific and medical properties” of cannabis conducted by the Department of Health and Human Services (HHS), which recommended rescheduling.
“Currently there are over 30,000 practitioners treating more than six million patients in 43 U.S. jurisdictions,” DEA said. “Such practices demonstrate that there is no longer a lack of accepted safety for use of marijuana under medical supervision, and as such, marijuana does not fulfill the requirements of being a Schedule I substance.”
It also said that there is “substantial evidence sufficient to show that marijuana’s abuse and dependency profiles better align with Schedule III substances than Schedule II” or Schedule I. “The vast majority of individuals who use marijuana do so in a manner that does not result in dangers to themselves or to their communities.”
In conclusion, DEA asked the judge overseeing the hearing to “expeditiously recommend” that marijuana be transferred from Schedule I to Schedule III.
During the hearing, DEA officials charged with defending the cannabis rescheduling proposal highlighted testimony on marijuana’s medical benefits and its relative safety compared to other substances such as alcohol and opioids. That included appearances from a Food and Drug Administration (FDA) scientist and a medical doctor from New Hampshire who detailed how medical marijuana provides relief to pain patients and can serve as an alternative to opioids.
Meanwhile, lawyers and witnesses for parties who are oppose marijuana rescheduling and participated in the hearing put significant focus on the alleged harms of cannabis use as well as criticism of recently adopted changes to an analysis used to determine whether drugs have accepted medical value.
DEA invited only organizations and people who oppose marijuana reform to join the hearing as designated participants—telling supporters that they do not meet the definition of an “interested person” to participate because they are not “adversely affected or aggrieved by any rule or proposed rule issuable.”
Ahead of the hearing’s start, marijuana reform activists held a press conference outside DEA headquarters to highlight how they feel the have been “shut out” of the process—criticizing the fact that no supporters of reform were invited to participate and that the proceedings were not livestreamed despite officials’ vows of “transparency.”
Marijuana Moment sent requests to Julius, the DEA judge, and to Cole, the DEA administrator, requesting they reverse a decision to prohibit the public from tuning into the cannabis hearing via livestream. A congressman and other journalists later joined in that request.
—
Marijuana Moment’s journalism is made possible by readers like you who value this work enough to support us with monthly pledges on Patreon. If you rely on our reporting to stay informed about key cannabis developments, please help us keep doing this by becoming a sustaining subscriber today.
Backing us at the $25/month level also gets you access to our Bill Tracker so you won’t miss any important marijuana legislation in your state.
—
A prior hearing process on the marijuana rescheduling process that was initiated by the Biden administration stalled last year amid litigation over alleged improper communications and witness selection.
The current marijuana rescheduling process is being challenged with several lawsuits that have been consolidated by a federal appeals court. Those pieces of litigation against the cannabis reform have been filed by state attorneys general, marijuana legalization opponents and a cannabis-focused biopharmaceutical corporation.
The U.S. Court of Appeals for the District of Columbia Circuit recently rejected a drug testing industry association and a pharmaceutical company’s request to block the Trump administration from moving forward with cannabis rescheduling while the litigation is considered.
A congressional committee recently voted to block federal officials from taking further steps to carry out cannabis rescheduling, though bipartisan lawmakers told Marijuana Moment they don’t believe that provision will be enacted into law.
Read the DEA judge’s order in the marijuana rescheduling hearing below and the motion that precipitated it:
Photo courtesy of Mike Latimer.
