Politics
DEA Releases Full Marijuana Rescheduling Hearing Transcript As Judge Prepares To Issue His Recommendation
The full official transcript of a Drug Enforcement Administration (DEA) hearing on the Trump administration’s marijuana rescheduling proposal has now been made available to the public.
The release of the day-by-day record of the cannabis rescheduling proceedings comes after DEA Chief Administrative Law Judge Derek Julius ordered that dozens of mostly small and technical changes be made to an initial draft.
The full transcript runs 2,533 pages for the full 11 days of the proceedings and reveals DEA’s effort to advocate on behalf of the move to reschedule marijuana as well as opponents’ attempts to undermine it.
“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.”
Julius, the DEA judge, said at the closing of the last day of the proceedings that the tribunal “understands the strong views held by many on all sides of the issues involved in this matter and is very grateful for the professionalism demonstrated by counsel and the parties throughout this hearing.”
“In making a recommended decision on the proposed rescheduling of marijuana, I give my solemn promise to counsel, the designated parties, and the public that I will thoroughly consider and evaluate all the evidence presented at this hearing,” the judge said.
Meanwhile, DEA and parties that participated in the marijuana rescheduling hearing filed their final briefs of the proceedings last week.
The federal agency, which is charged with defending the proposed move of cannabis from Schedule I of the Controlled Substances Act (CSA) to Schedule III, 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.
Opponents of cannabis reform—including the SAM; the states of Idaho, Indiana and Nebraska; TBI; National Drug and Alcohol Screening Association (NDASA) and others—also filed briefs.
The anti-rescheduling entities argued that a new two-part test federal officials used to analyze cannabis improperly departs from a former five-part test, that marijuana does not have accepted medical value and that the reform would undermine drug testing of safety-sensitive workers, among other things.
In 2024, the Department of Justice’s (DOJ) Office of Legal Counsel (OLC) said the prior five-part test was “impermissibly narrow” and said the two-part review “is sufficient to establish that a drug has CAMU even if the drug has not been approved by FDA and would not satisfy DEA’s five-part test.”
DEA has since embraced the new approach to evaluating cannabis for CAMU and it has been used to subsequently evaluate other substances.
Julius, the DEA judge, will now consider the final briefs and testimony delivered during the hearing and issue a recommendation on cannabis’s scheduling status. The final decision will ultimately be up to the DEA administrator, however.
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 Administrator Terrance Cole 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.”
Opposition parties that participated include Smart Approaches to Marijuana, National Drug & Alcohol Screening Association, Tennessee Bureau of Investigation, DUID Victim Voices, Kenneth Finn, Phillip A. Drum and the states of Idaho, Indiana and Nebraska.
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.
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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 attorney general signed, the hearing is being held to consider more comprehensively moving marijuana to Schedule III.
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.
The Department of War issued a memo making clear that marijuana use by military service members and civilian employees of the department remains prohibited, even under federal cannabis rescheduling.
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.
Photo courtesy of Mike Latimer.
