Politics
Federal Marijuana Rescheduling Hearing Wraps Up, With DEA Judge Laying Out Next Steps
A Drug Enforcement Administration (DEA) hearing on the Trump administration’s cannabis rescheduling proposal has concluded, and the agency judge overseeing the proceedings has laid out a timeline for participating parties to file post-hearing briefs ahead of his own forthcoming recommendation on the reform.
The multi-day hearing, which began late last month, wrapped up on Wednesday following the end of a presentation by a handful of states that oppose the federal cannabis reform.
DEA Chief Administrative Law Judge Derek Julius on Thursday issued an order saying that because “no time was allotted for closing arguments” during the in-person court days, participants in the proceedings will be able to file post-hearing briefs—and they are due by August 17.
Those documents can be a maximum of 50 pages in length and can include “closing arguments and argument on any other issue noted by the tribunal during the hearing.”
“This is a nonmandatory submission; therefore, a Designated Party will not be penalized for not filing a post-hearing brief, and the absence of a submission implies that no submission was intended,” Julius wrote.
His order also says that participants may submit proposed corrections to daily transcripts from the proceedings by August 17.
“Corrections submitted by Designated Parties are only proposed corrections. This tribunal will also review the transcript for possible errors and note where corrections are needed,” the judge wrote. “The list created by the tribunal will be compared to the list(s) submitted by the Designated Parties to create a final corrections list. Following that, this tribunal will issue an order adopting the final list of corrections and will adopt those corrections into the official copy of the transcript.”
“A fully corrected copy of the transcript of these proceedings will be made available to the public on the Agency’s website,” Julius said.
The judge noted in his closing remarks at the end of the hearing on Wednesday that after he receives the forthcoming briefs he will work on writing his own recommendation on whether the government should move ahead with broad marijuana rescheduling—but stressed that the final decision will ultimately be up to the DEA administrator.
Julius did not lay out an expected timeline for either his recommendation of the administrator’s action.
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 last month, 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 DEA Chief Administrative Law Judge Derek Julius 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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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 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.
Read the DEA judge’s post-hearing order below:
