Politics
DEA Picks Participants For Marijuana Rescheduling Hearing This Month, And Only Opponents Are Invited
The Drug Enforcement Administration (DEA) has selected participants for a hearing about the Trump administration’s cannabis rescheduling process that is set to start later this month—and only opponents of the reform have been invited to take part.
On Thursday, DEA began notifying parties who had expressed intent to participate that they have been invited to do so, and also sending rejection letters to those who are not being invited.
The invited participants are:
- National Drug & Alcohol Screening Association (NDASA)
- Tennessee Bureau of Investigation
- Smart Approaches to Marijuana (SAM)
- The States of Nebraska, Idaho, Indiana, and Louisiana
- DUID Victim Voices
- Kenneth Finn, MD
- Phillip A. Drum, PharmD
All of the organizations, individuals and officials have expressed opposition to marijuana reform, and some have filed litigation in an attempt to block cannabis rescheduling specifically.
No reform supporters who expressed intent to participate have been invited.
According to several rejection letters Marijuana Moment has seen from cannabis reform supporters, DEA said 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.”
In one such letter to the Drug Policy Alliance (DPA), DEA Administrator Terrance Cole wrote that the agency “concludes that you have not demonstrated you are adversely affected or aggrieved by the promulgation of a proposed rule transferring marijuana, as listed in 21 CFR 1308.11(d)(23), marijuana extracts, as defined in 21 CFR 1308.11(d)(58), and naturally derived delta-9-tetrahydrocannabinols from schedule I t o schedule III of the CSA, as proposed in the” notice of proposed rulemaking (NPRM).
“Indeed, you state that DPA supports removing marijuana from schedule I and ‘does not oppose’ the transfer of marijuana to schedule III. Further, any conceivable harm that DPA claims it would suffer from the NPRM would exist regardless of whether marijuana is transferred to schedule III or remained in schedule I. In other words, DPA is not adversely affected or aggrieved by the promulgation of the proposed rule to transfer marijuana to schedule III. Because DPA has failed to sufficiently demonstrate that it is adversely affected or aggrieved by the proposed rule itself, DEA concludes that DPA is not an ‘interested person.'”
“Accordingly, DEA denies your request to participate in the hearing,” Cole told DPA.
Cat Packer, DPA’s director of drug markets and legal regulation, told Marijuana Moment after receiving the notice of denial to participate that “rescheduling would leave federal marijuana criminalization largely intact and falls short of what the public has demanded.”
“More than 70 percent of public comments submitted on the proposed rule supported decriminalization, yet many of the patients, consumers, families, small businesses and individuals who have borne the consequences of prohibition—including arrest, incarceration, family separation, housing barriers, immigration consequences, and lost economic opportunity—have been excluded from meaningful participation in these proceedings,” she said. “The people who have carried the burden of marijuana prohibition deserve more than a seat at the table—they should be at the center of the conversation, helping shape the policies that affect their lives, families and communities.”
Michael Bronstein, president of the American Trade Association for Cannabis & Hemp (ATACH), similarly said his group is “deeply disappointed that not a single supporter of cannabis rescheduling was selected.”
“The upcoming rescheduling hearing will now strictly include prohibitionist parties that oppose President Trump’s position on rescheduling. It will now be solely up to the Drug Enforcement Administration to defend its rule,” he said.
SAM President Kevin Sabet, meanwhile, said his prohibitionist group is “grateful for the opportunity to make our case” at the hearing.
“Rescheduling marijuana would be the greatest drug policy mistake in a generation,” he argued in a statement. “SAM looks forward to presenting the science, the data, and the public health stakes that demonstrate why rescheduling should be rejected.”
The hearing, which will be overseen by a DEA administrative law judge, will begin on June 29 and is set to conclude no later than July 15.
Acting 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 the acting attorning general signed, the upcoming hearing will consider more comprehensively moving marijuana to Schedule III.
In order to be considered for participation in the hearing, parties needed to file requests articulating their interest in the proceeding, the objections or issues they wish to be heard on and their position on those issues.
“The purpose of the hearing is to ‘receiv[e] factual evidence and expert opinion regarding’ whether marijuana should be transferred to schedule III of the list of controlled substances,” Blanche’s initial notice, filed in April, said.
The attorney general will also select an administrative law judge (ALJ) to oversee the proceedings.
“The ALJ’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” Administrative Procedures Act, Blanche wrote.
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.
Meanwhile, the already-enacted rescheduling of state-licensed medical cannabis is already having broad impacts.
The Congressional Research Service published a report on the current cannabis rescheduling move explaining that certified patients who possess medical marijuana from state-licensed dispensaries now have certain protections under Schedule III. “The order appears to authorize end users to possess marijuana for medical use without a CSA-compliant prescription,” it says.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has posted a draft update to a gun purchase form to acknowledge the federally legal status of medical marijuana under rescheduling. The revised section in question notably says that only “use or possession of marijuana for recreational purposes” is federally prohibited, leaving out the prior form’s mention of medical cannabis.
The U.S. Department of the Treasury and Internal Revenue Service (IRS) said they plan to issue new tax guidance for the marijuana industry following rescheduling. The reform will benefit state-licensed marijuana businesses by allowing them to take federal tax deductions they’re currently barred from under an IRS code known as 280E that doesn’t apply to Schedule III substances.
Even DEA, which has long opposed cannabis legalization and was accused of stalling the rescheduling process initiative by the Biden administration, has launched a registration process for state-legal marijuana businesses to take advantage of federal benefits that come with the reform.
The Department of Transportation, on the other hand, issued guidance saying that use of state-legal medical cannabis is still no excuse for a positive drug test by truck drivers, pilots and other safety-sensitive workers.
A congressional committee recently voted to block federal officials from taking further steps to carry out cannabis rescheduling.
Read DEA’s rescheduling hearing denial letter to the Drug Policy Alliance below:
