Marijuana Rescheduling: Delays, Adverse Participants… It’s All Good

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Last Thursday, we learned that the DEA’s marijuana rescheduling hearings are delayed until early next year. We also saw the list of 25 participants invited by the DEA to testify at those hearings. The takeaways here are: a) we will not have a substantive hearing on marijuana rescheduling until a new President takes office, and b) most of the hearing participants “represent law enforcement and anti-marijuana lobbies” as stated by MJBizDaily. Many people online didn’t like this at all, but I’ll humbly submit that it’s closer to a nothingburger.

The sky is not falling; delays are normal (and expected)

Anyone who has been around litigation or other court proceedings knows that delays are typical. You don’t have to be an administrative law expert (I’m not) to appreciate that. In this respect, it is puzzling why some of the industry folks, including cannabis lawyers, were howling at last Thursday’s news. It’s like complaining about the color of the sky.

Administrative Law Judge (ALJ) John Mulrooney’s Preliminary Order (“Order”) strikes me as a typical housekeeping exercise. He notes that the DEA hasn’t clarified which of the rescheduling hearing’s 25 participants support rescheduling, and which don’t. The Order gives a November 12^th deadline (pretty tight!) for clarification on this point, and on related important issues– including disclosures of any known participant or DEA conflicts of interest. The Order also gives the DEA until November 12^th to designate its counsel of record.

The Order is also clear that the previously scheduled December 2^nd hearing remains on the docket. Participants must come prepared with “January-February 2025” dates for the big show. Lest you believe that the question of cannabis rescheduling will be fully and finally resolved at that time, I’m here to tell you otherwise. The hearings may drag on for any number of reasons, and once concluded, the ALJ will likely take his time arriving at a decision. Moreover, that decision could be litigated.

In short, people need to take a breather and understand that things are going as expected. Back on May 1^st, the day after the DEA agreed to initiate Schedule III rulemaking, I wrote that “I doubt cannabis will be on Schedule III” by Election Day. In the bigger picture, and long before that, I highlighted how Biden “passed the buck, putting us on an uncertain, circuitous path” by kicking off this rescheduling inquiry. For the 1,000^th time, Congress needs to act.

The participant list isn’t a huge deal; could even be helpful

The ALJ is presiding over a rulemaking process and making a record. A “record” in judicial proceedings is a technical term: it means the written account of all documents, evidence and proceedings in a matter. The record has already begun to accrete in this one, by way of the 42,925 comments on marijuana rescheduling submitted prior to the July 22 deadline (69.3% of them in support of rescheduling). The early 2025 hearings will continue to build out the record.

I mentioned above that the ALJ’s rulings may be litigated. If I were in the Judge’s chair, or even DEA’s, I’d make every possible effort to hear, on the record, from participants opposed to rescheduling. This is a useful way to insulate the Judge’s likely decision to follow the DEA’s Schedule III recommendation– all are fully and fairly heard.

No matter how much “evidence” or persuasive testimony opponents may conjure and enter into the record, it should not be enough to unseat the findings from FDA/HHS. That 250 page script considers the eight factors that determine control of a substance under 21 U.S.C. 811(c)– including that marijuana has a currently accepted medical use (CAMU). The report also contains favorable relative findings on abuse liability, with respect to other scheduled and unscheduled drugs (fentanyl, ketamine, alcohol, etc.). I just don’t see the naysayers getting there.

What’s next for marijuana rescheduling

Obviously, tomorrow’s elections are a pretty big deal. They don’t bear directly on these proceedings, but the composition of Congress and the Presidency for the next few years could potentially obviate the need for this rulemaking, or lessen its impact. Beyond that, a few interesting breadcrumbs may fall from the December 2^nd hearing, including which witnesses will testify on behalf of the 25 selected participants (a few are associations with yet-undesignated reps), whether any conflicts of interest arise, and anything else.

Stay tuned for December 2^nd if you’re a very process-oriented person. Everyone else can probably take a breather. This is what Biden signed us up for, after all, instead of following through with his campaign promises to decriminalize marijuana. (I couldn’t resist!)

For more on this topic, check out the following posts: