Politics
Marijuana Moment Asks DEA Judge To Allow Livestreaming Of Rescheduling Hearing For Transparent Public Access
Marijuana Moment is asking a Drug Enforcement Administration (DEA) judge to reconsider his decision to prohibit livestraming of a hearing on the Trump administration’s cannabis rescheduling proposal that is scheduled to begin next week and that features only opponents of the reform as invited participants.
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 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.”
The letter makes clear that Marijuana Moment “does not seek to participate as a party, present evidence, examine witnesses, submit proposed findings, or alter the merits schedule” and “seeks only contemporaneous public and press access to an administrative hearing of recognized national public interest.”
Bondy requested a response from Julius by Thursday.
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Meanwhile, the attorney is also representing a major cannabis reform organization that is asking DEA to reconsider the decision to exclude it from participating in the hearing as an interested party.
The National Organization for the Reform of Marijuana Laws (NORML), which represents the interests of people who use cannabis, filed the “emergency request for reconsideration” on Friday through Bondy, saying that the “public interest will be substantially harmed if the record omits the consumer perspective.”
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.
“NORML’s exclusion, if not corrected immediately, will deprive NORML and the cannabis consumers it represents of meaningful participation in prehearing procedures, witness presentation, exhibit designation, cross-examination, legal briefing, and any other proceedings necessary to compile a complete record,”Bondy, who serves as chair of NORML’s board of directors, wrote to DEA Administrator Terrance Cole. “The prejudice is immediate. It cannot be cured after the hearing closes.”
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.”
NORML said in its request for reconsideration, however, that “DEA’s denial rests on a mistaken premise: that NORML is not adversely affected or aggrieved by the proposed rule because NORML supports removing marijuana from schedule I and recognizes that schedule III is preferable to schedule I.”
“That is not NORML’s position. NORML supports removal from schedule I. But NORML does not concede that schedule III is the correct final federal treatment for marijuana,” Bondy wrote. “NORML’s position is that marijuana should be removed from the CSA schedules and regulated under a cannabis-specific federal framework directed to public health, consumer safety, product integrity, youth prevention, truthful labeling, testing, research access, impaired-driving policy, anti-diversion, state-regulated market realities, and illicit-market displacement.”
The attorney wrote that the injury from Schedule III status for marijuana is “not mere ideological disappointment.”
“NORML’s members would remain subject to federal controlled-substance status and the legal consequences that flow from it. Adult-use consumers who lawfully participate in state-regulated markets would remain outside coherent federal recognition,” Bondy said. “Schedule III would preserve federal illegality for cannabis activity outside federally authorized medical, research, or registrant channels. It would continue federal-state conflict, public confusion, stigma, collateral consequences, and consumer-safety harms.”
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 letter to the DEA judge from Marijuana Moment’s attorney below:
https://www.documentcloud.org/documents/28311644-mm-dea-judge-letter/
