Politics
DEA Resists Testimony From Agency Official Linked To Report On Marijuana’s Harms During Rescheduling Hearing
The Drug Enforcement Administration (DEA) is resisting a prohibitionist group’s request for an agency official to testify about the harms of marijuana during a hearing on the Trump administration’s move to reschedule cannabis that is scheduled to start next week.
The organization Smart Approaches to Marijuana (SAM), which opposes the proposed reform, wants Luli Akinfiresoye, a pharmacologist in the DEA Diversion Control Division’s Drug and Chemical Evaluation Section, to testify during the proceedings.
Akinfiresoye was previously an official DEA witness for an earlier, subsequently cancelled hearing on marijuana rescheduling during the Biden administration. During that time, she submitted into the record a report that attempts to link cannabis consumption to psychosis, depression and impaired cognitive functioning. It also says there is “great concern” about use of non-federally-approved medical marijuana products under state laws, arguing it could have “unpredictable and unintended consequences.”
However, “The Government does not intend to identify Dr. Akinfiresoye as witness for our case in chief,” during the current proceedings, DEA attorney James J. Schwartz wrote in an email to SAM this week, prompting the group to seek to subpoena the DEA pharmacologist as its own witness in the hearing.
The prohibitionist group is one of seven parties that have been invited to participate in the hearing, while no reform supporters who requested to take part are being allowed to do so.
DEA told SAM that if it wants to call the agency pharmacologist as a witness, it will need to submit a request under specific rules known as Touhy regulations, and also that the information it wants to uncover in the hearing may be shielded under the Privacy Act.
If that is the case, “the information may not be disclosed without prior written consent of those identified in documents who are protected by the Privacy Act, or pursuant to the order of a court of competent jurisdiction and signed by a Judge,” Amber Porter, section chief in DEA’s Office of Chief Counsel, wrote to an attorney at Torridon Law PLLC, which is representing SAM. “Please also be aware that one or more privileges, such as the law enforcement privilege, may bar release of the information you seek.”
The DEA report linked to Akinfiresoye’s prior testimony says that “cannabis impairs a wide range of psychomotor skills, including motor coordination, divided attention, and complex task performance.”
“Furthermore, chronic use of cannabis can impair cognitive functioning, affecting the organization and integration of complex information, as well as impair attention and memory processes,” it says. “Prolonged use may lead to greater and potentially irreversible impairment, which could impact daily life functions. Chronic users may develop a dependence syndrome characterized by a loss of control over cannabis use.”
“Long-term cannabis smoking can also cause epithelial injury to the trachea and major bronchi, leading to airway inflammation, impaired pulmonary defenses, and a higher prevalence of chronic and acute bronchitis symptoms. Additionally, cannabis use can exacerbate schizophrenia in affected individuals.”
The report also discusses state medical marijuana laws, raising concerns about patients’ use of cannabis to treat conditions for which it hasn’t received federal approval:
“State programs have legalized cannabis for a variety of medical conditions, such as (but not limited to) chronic pain, glaucoma, anxiety, and as an antiemetic in the treatment of chemotherapy-induced nausea. However, according to the U.S. Food and Drug Administration (FDA), the use of unapproved cannabis and/or unapproved cannabis-derived products to treat a number of medical conditions including, AIDS wasting, epilepsy, neuropathic pain, spasticity associated with multiple sclerosis, and cancer and chemotherapy-induced nausea is of great concern. FDA notes that its drug approval process involves a careful evaluation for safety, efficacy, quality, and monitoring once approved for marketing. The use of unapproved cannabis and cannabis-derived products can have unpredictable and unintended consequences, including serious safety risks. Furthermore, there has been no FDA review of data from rigorous clinical trials to support safety and efficacy of the unapproved products for the various therapeutic uses for which they are being used.”
DEA is technically the proponent of the proposed marijuana rescheduling rule and will fill the role of defending it during the hearing, though some cannabis reform supporters are skeptical it will effectively do so given the agency’s long history of defending strict prohibition.
DEA’s seeming reluctance to ease the way for testimony from Akinfiresoye that might focus on the potential harms of cannabis could give reform supporters some comfort, however—though it remains to be seen how agency personnel it does put forth to partake in the hearing speak to marijuana’s effects and the need for federal scheduling reform.
To that end, Marijuana Moment this seek sent a latter asking the DEA judge overseeing the proceedings to reconsider his decision to prohibit livestreaming of the hearing.
Chief Administrative Law Judge Derek Julis last week issued a preliminary order laying out rules and timelines for the marijuana rescheduling proceedings—simultaneously recognizing that “national public interest in this issue predicates towards a policy of transparency” while also determining that “the hearing will not be televised, livestreamed, or broadcasted in any way.”
As a result, people who wish to observe the historic cannabis reform process must attend in person in Arlington, Virginia under the judge’s order.
In a letter sent to Julius on Tuesday, Marijuana Moment counsel Joseph A. Bondy noted that DEA permitted livestreaming of an earlier, subsequently cancelled hearing process on the proposal to move cannabis from Schedule I of the Controlled Substances Act (CSA) to Schedule III that took place during the Biden administration.
“That prior determination was correct. The public-interest rationale for contemporaneous access has not diminished,” Bondy wrote. “If DEA believes safety, witness-management, or operational concerns now require a more restrictive access regime, those concerns should be identified and addressed through narrow conditions rather than a categorical ban.”
“Limited physical seating in Arlington is not a meaningful substitute for livestreaming. Marijuana Moment, like many members of the press and public who follow federal cannabis policy nationally, cannot rely on a handful of available seats as a practical means of observing and reporting on the hearing. That is precisely why DEA’s prior livestreaming directive mattered: it allowed those physically outside the courtroom to observe the proceeding without disrupting the hearing, burdening security, or conferring party status on anyone.”
“In a proceeding of this public significance, and in light of DEA’s prior livestreaming directive, a public hearing is not meaningfully public if access depends on the happenstance of limited physical attendance,” Marijuana Moment’s attorney wrote to the DEA judge. “Delayed access to transcripts is no substitute for contemporaneous observation. The press reports events as they unfold. The public evaluates government action in real time. And in a proceeding of this magnitude, transparency is not a courtesy. It is a safeguard.”
“For a substantial public audience seeking serious coverage of federal cannabis policy, Marijuana Moment is an important channel through which public understanding of this proceeding occurs.”
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DEA last week announced that it had selected participants for the marijuana rescheduling hearing—and only opponents of the reform have been invited to take part, some of whom have filed litigation in an attempt to block the reform. No reform supporters who expressed intent to participate were invited.
The hearing 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 attorney 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 also selected 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 the filings on SAM’s request for the DEA officials to testify below:
