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Prohibitionist Group Represented By Former Trump Attorney General Urges DEA To Delay Marijuana Rescheduling Process



A prohibitionist group represented by a law firm founded by former Attorney General William Barr are asking the Drug Enforcement Administration (DEA) to extend the current public comment period for a marijuana rescheduling proposal, arguing that a delay in the rulemaking process is a matter of “public interest.”

In a request submitted to DEA earlier this month, Smart Approaches to Marijuana (SAM) argued that the 60-day public comment window that opened late last month should be extended by another 30 days, listing four reasons they believe more time is needed to collect feedback.

Notably, the request was submitted on SAM’s behalf by Torridon Law PLLC. That firm was founded by Barr, who led the Justice Department under the Trump administration and who faced criticism after initiating investigations into cannabis industry mergers that were described as improper.

SAM’s comment to DEA—one of more than 20,000 that have been posted since DEA opened the comment window about a month ago—says DOJ’s proposed rule to move marijuana from Schedule I to Schedule III would be “the most significant relaxation of restrictions on a psychoactive substance in the history” of the Controlled Substances Act (CSA).

“It is also a significant reversal of nearly a dozen prior agency decisions rejecting proposals to move marijuana out of Schedule I,” it said. “It is not an overstatement to say that this Proposed Rule may address the most consequential rescheduling decision DEA has ever made. A rule effecting such a sweeping change warrants more than a 60-day comment period for affected stakeholders to gather necessary data to address the Proposed Rule.”

Further, the group said “additional data on the effects that marijuana has on the cognitive development of adolescent users will be particularly important for the DEA’s consideration of the Proposed Rule,” arguing that such information “appears to have been ignored” by the U.S. Department of Health and Human Services (HHS) that recommended rescheduling last year following an 11-month scientific review.

“SAM has an interest in providing DEA accurate and up-to-date information on all these issues, but that will take time to compile,” the request says. “Sixty days is not adequate to prepare comprehensive comments addressing all the subject areas in which DEA has asked for additional information.”

The organization also said the rescheduling proposal “raises significant legal questions” because it’s based in part on a “novel test” to determine whether a substance has currently accepted medical use that was “recently invented by HHS and embraced” in a Justice Department Office of Legal Counsel opinion. It also argued that more time is required to consider the legal implications of rescheduling with respect to international treaties to which the U.S. is a party.

SAM officials said at a separate webinar last week that it is weighing “all legal options” to challenge the proposed cannabis move, while encouraging supporters to oppose the pending change.

Finally, SAM asserted in the new comment that “there is no urgency to the rulemaking and DEA should take sufficient time to receive fully considered comments and relevant data.”

“Rushing the comment period will not allow interested parties sufficient time to gather and present the best information available,” it said, adding that earlier this year “DEA granted an extension of time to allow a 120-day comment period on the advanced notice of proposed rulemaking concerning alternatives to destroying narcotics by incineration.”

“If that rule warranted 120 days for comments, one of the most significant rulemakings in the history of the CSA certainly warrants a 30-day extension to allow 90 days for comments,” it says.

Since the government’s rescheduling plan was made public in April, SAM has amplified rumors that DEA officials might oppose the proposed change—rumors that a top Biden administration official appeared to acknowledge this month.

In early May, SAM President Kevin Sabet said he’d heard rumors that DEA Administrator Anne Milgram “did not sign off” on the landmark decision, suggesting that the agency wasn’t on board. As it turned out, Milgram did not put her name on the proposed rescheduling rule, leaving it to Attorney General Merrick Garland to sign the document.

GOP lawmakers in Congress questioned Milgram about the matter during a hearing, but she replied it would be “inappropriate” to comment.

As for what happens next, SAM is holding out hope that DEA could reject the rescheduling recommendation or, alternatively, move marijuana to Schedule II. Sabet pointed to interpretations of international law, for example, that read drug treaties as prohibiting any move outside of Schedules I and II.

While DOJ will take all public comments submitted by July 22 into consideration as it weighs the reform, it said in the notice that one of the topics its especially interested in hearing about is the “unique economic impacts” of the rescheduling proposal given that state-level legalization has created a “multibillion dollar industry” that stands to benefit from possible federal tax relief under the reform.

Indications that DEA might not be on board came alongside the rescheduling move itself, with the proposed rule in the Federal Register noting several times that the agency believes “additional information” needs to be collected via public comment or a possible administrative hearing could influence the final scheduling decision.

“DEA has not yet made a determination as to its views of the appropriate schedule for marijuana,” the document said.

Even before the formal announcement, it had been reported that certain DEA officials had been “at odds” with the Biden administration over the rescheduling push.

Asked about the status of the proposed move of cannabis to Schedule III of the Controlled Substances Act at a recent event in Sacramento, HHS Secretary Xavier Becerra said his agency made its recommendation based on available science and evidence.

Asked whether there was resistance at DEA, he responded, “Talk to the DEA.”

“Our scientists reviewed the evidence,” Becerra added. “FDA bases its action on the science and the evidence before us. We took action.”

Marijuana Rescheduling Opponents Slam FDA Process, Saying It Relied On ‘Very Bad Studies’

Photo courtesy of Philip Steffan.

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Kyle Jaeger is Marijuana Moment's Sacramento-based managing editor. His work has also appeared in High Times, VICE and attn.


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