Politics
Marijuana Opponents Attack Government Analysis Behind Rescheduling Recommendation On Second Day Of DEA Hearing
Lawyers for marijuana reform opponents that are participating in a Drug Enforcement Administration (DEA) hearing on the Trump administration’s cannabis rescheduling proposal put significant focus on the second day of the proceedings on pressing a government witness about recently adopted changes to an analysis used to determine whether drugs have accepted medical value.
A separate government witness who began his testimony on Tuesday focused on cannabis’s role in treating pain patients and its relative safety compared to opioids.
Under federal law, drugs that have a currently accepted medical use (CAMU) cannot be classified in Schedule I, the most restrictive category. For years, officials had used a five-part test to determine a substance’s medical utility that involved an analysis of whether its chemistry is known and reproducible, safety studies, research proving efficacy, acceptance by qualified experts and widely available scientific evidence.
But in 2023 to evaluate marijuana, they switched to a new two-part analysis that looks at whether there is widespread, current experience with medical use of the substance by licensed health care providers operating in accordance with state laws and, if so, whether there is some credible scientific support for at least one of the medical conditions it is being used for.
Opponents of reform say the switch was improper, however. Their attorneys pressed Dominic Chiapperino, who serves as director of the controlled substance staff with the Food and Drug Administration’s (FDA) Center for Drug Evaluation and Research and is one of the DEA’s two witnesses, on the issue during cross-examination on Tuesday.
An attorney for the states of Idaho, Indiana and Nebraska, for example, focused on how a prior analysis on marijuana, conducted in 2015 under the older test, concluded that it should not be rescheduled because it did not have a currently accepted medical use.
Under questioning, FDA’s Chiapperino testified that the new two-part test did not exist when he and agency colleagues began the most recent analysis of marijuana that led to its rescheduling recommendation and that in July 2023—just two months before they finished their work—officials were informed of the new approach in a letter from the assistant secretary of health.
Chiapperino also acknowledged that marijuana would not have passed the prior five-part test. The line of questioning that led to that testimony was objected to by DEA lawyers but they were overruled by the judge overseeing the proceedings.
Kevin Sabet, president and CEO of the prohibitionist organization Smart Approaches to Marijuana, said in a video posted to social media that the admission is “truly extraordinary.”
“Let’s be clear about what this means,” he said. “It means that the government is asking to move marijuana out of Schedule I, but it did so using a brand new standard instead of a standard that it had applied for years, which has applied for every other drug—and now in open court its own witness has acknowledged that marijuana would not have met the traditional test.”
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.
While the rescheduling proceedings are not being livestreamed to the public in line with requests from Marijuana Moment, a congressman and others, Marijuana Moment spoke to several people who were in the room for the hearing to get a sense of how the testimony is going. Quotes from participants come from sources’ notes and have not been verified, as official transcripts have not yet been made available.
On Monday, the first day of the hearing, DEA lawyers highlighted testimony on marijuana’s medical benefits and its relative safety compared to other substances such as alcohol and opioids.
Also on Tuesday, government’s second witness, Corey Burchman, a medical doctor from New Hampshire, began his testimony, with a focus on how medical marijuana provides relief to pain patients and can serve as an alternative to opioids.
Once medical cannabis became available, he and colleagues would “avidly use that ability to limit opioids,” he said—adding that some patients were able to fully transition off of the prescription painkillers. It was “positive” and “benefitted patients,” he said.
“It is extremely helpful in chronic pain patients as a means of analgesia,” Burchman testified.
He also spoke about the relatively safety and effects of cannabis and opioids.
“Withdrawal from opioids is like a dumpster fire,” he said. “Withdrawal from marijuana is more like dying glowing ember of a campfire.”
Ahead of the hearing’s start on Monday, 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 are not being livestreamed despite officials’ vows of “transparency.”
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.”
Last week, 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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Rescheduling opponents that are participating in the hearing filed statements last week previewing the anti-marijuana arguments they intend to make during the proceedings.
The hearing 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.
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, though bipartisan lawmakers told Marijuana Moment they don’t believe that provision will be enacted into law.
Photo courtesy of Carlos Gracia.
