Politics
The Marijuana Rescheduling Process Has Been Delayed—But Not Derailed (Op-Ed)
“Reports of the marijuana rescheduling proceeding’s death are greatly exaggerated… This is a procedural pause, nothing more.”
By Eric P. Berlin and Joanne Caceres, Dentons
Reports of the marijuana rescheduling proceeding’s death are greatly exaggerated.
Despite the alarm set off by a recent Government Accountability Office (GAO) report, the Drug Enforcement Administration’s (DEA) proceeding to move cannabis from schedule I to schedule III of the Controlled Substances Act (CSA) is very much alive. The record has been in the hands of DEA Chief Administrative Law Judge (ALJ) Derek Julius since August 17, and with the midterm elections approaching, the industry expected, or at least hoped, for a rescheduling recommendation this month.
That timeline has now slipped—but this is a delay, not a defeat, and the industry should not panic.
This is a procedural pause, nothing more.
The GAO report raised questions about process, not substance, and the stay it prompted should cost the proceeding time, not its outcome. Moreover, it has no bearing on the rescheduling of medical marijuana. Like the other substances the GAO reviewed, medical marijuana has already been formally rescheduled, and the attorney general’s medical marijuana decision rested on 21 U.S.C. § 811(d), and the United States’s international treaty obligations, with the Department of Health and Human Services (HHS) evaluation serving only as additional support.
Consider the GAO report’s timing: a scheduling process that has operated unquestioned since Congress enacted the CSA in 1970—56 years ago—was suddenly found to have “gaps” only at the final stage of marijuana rescheduling. On September 23, GAO released the report. Five days later, three rescheduling opponents asked the DEA chief ALJ to add the report to the hearing record, allow more briefing and stay the proceedings. The next day, he paused the proceeding to consider their motion.
Through all of this, one thing has not changed: the HHS scientific evaluation supporting schedule III.
Opponents are spinning the GAO findings as a setback for rescheduling. They are not. Look at what the report and the order actually say.
What The GAO Report Does (And Does Not) Establish
The headline findings are modest.
In its report, GAO found that neither DEA nor the Food and Drug Administration (FDA) has comprehensive written policies describing how staff should evaluate and schedule substances and that FDA has no written criteria for judging a drug’s “potential for abuse.” It also found that the memorandum of understanding (MOU) between the FDA and the National Institute on Drug Abuse (NIDA)—which describes procedures for the cooperative and timely interaction between the agencies in expediting HHS scheduling recommendations, and took effect in 1984—has not been updated in more than 40 years.
Both DEA and FDA agreed to address these gaps.
What GAO did not find matters far more. It reviewed 95 substances that required HHS input from 2020 through 2025. In every one, DEA requested and considered HHS’s evaluation. In all 84 cases where a final decision had been issued, DEA’s decision matched the HHS’s scientific recommendation. That is a perfect record.
The report does not conclude that any scheduling decision, including on marijuana, was wrong, unlawful or contrary to the CSA. In GAO’s own words, DEA “routinely seeks and considers HHS’s scientific and medical expertise.”
What The ALJ’s Order Does (And Does Not) Do
On September 28, the opponents moved to add the GAO report to the record, reopen briefing and stay the case. The chief ALJ’s response was limited to pausing the proceeding while he considers the motion.
That order is purely procedural. It merely halts the proceeding to permit the government, which must file, and the rescheduling opponents, who may file, to brief the motion by October 13. It casts no doubt on the substance of HHS’s evaluation or on DEA’s position at the hearing that all of cannabis belongs in schedule III. Under DEA’s rules, the ALJ’s power to receive evidence ends once the record is certified to the DEA administrator.
The pause simply allows the chief ALJ to rule on the motion before that happens. It says nothing about whether the report is accurate, admissible or important.
The Opponents’ Argument
The rescheduling opponents’ theory runs, as follows: because DEA’s case for schedule III rests on HHS’s 2023 evaluation, DEA’s position is only as good as the process behind it. A schedule III finding requires comparing marijuana’s abuse potential to drugs in schedules I and II. They note that FDA found a high potential for abuse in 2015 but reached the opposite conclusion in 2023. Without a written standard, they say, no one can tell whether new science or a new yardstick explains the change.
This argument confuses procedure with substance. No law requires the written policies GAO recommended, a point DEA made to GAO directly, stating that the CSA and its regulations set out the legal requirements. The GAO report cites no legal mandate; it simply recommended more detailed internal guidance as a good-government practice.
The rescheduling record is also substantial, likely one of the most complete of any rescheduling process. It includes HHS’s 252-page detailed scientific evaluation and thousands of pages of supporting health and safety data, the attorney general’s final order and a full hearing record with the government’s opening and closing briefs thoroughly describing its position.
In addition, the Justice Department’s Office of Legal Counsel (OLC) concluded in 2024 that HHS’s two-part test is a valid way to establish accepted medical use, finding that DEA’s previous five-part test was “an impermissibly narrow interpretation” of the CSA and that a substance could have a “currently accepted medical use” even without FDA approval. The OLC also concluded that schedule III, with added controls, can satisfy U.S. treaty obligations.
Better Recordkeeping, Not Reversal
The GAO report has value. We certainly favor government accountability and good recordkeeping. Agencies should write down how they do important work, and DEA and HHS have agreed to do that moving forward.
But GAO itself described the issue modestly—not as the existential flaw the opponents claim. The report said only that the gaps “may pose a risk to the consistency” of future operations if staff leave or institutional knowledge is lost. A call for better recordkeeping is not a reason to undo sound policy.
The rescheduling of marijuana rests on reams of scientific and public health and safety data, a 252-page evaluation by the scientists tasked to interpret the data and a full hearing with testimony and briefing by all parties. Nothing in GAO’s findings should disturb the schedule III recommendation.
What Comes Next
Yes, the stay will cost time. Briefs are due on Tuesday, and the chief ALJ may ask for supplemental briefing before ruling. After that, he will issue a recommended decision, and certification cannot occur sooner than 25 days after that recommendation is served.
In our view, the likely best case for a final rule is the first quarter of 2027.
Rescheduling is still moving forward. The industry should remember, however, that the surest path to federal cannabis reform without protracted litigation runs through Congress. As the GAO report itself notes, Congress can schedule substances through legislation, without the agency process that is now under attack. A statutory change in law is far less exposed to the kind of procedural challenge that opponents are mounting here.
Eric P. Berlin and Joanne Caceres are partners at Dentons.
