The Historic DEA Marijuana Rescheduling Hearings: What We Know So Far

The U.S. Drug Enforcement Administration (DEA) recently began proceedings on a historic proposal to reschedule marijuana under the Controlled Substances Act (CSA). This development, initiated by a recommendation from the U.S. Department of Health and Human Services (HHS), aims to move marijuana from Schedule I—reserved for substances with no accepted medical use and high abuse potential—to Schedule III, a category that acknowledges potential medical use with a lower risk of abuse.

Procedural Hearing Highlights

On Monday, DEA Administrative Law Judge John Mulrooney II presided over the initial procedural hearing. The session clarified the framework for upcoming evidentiary hearings, set to begin in mid-January 2025. Judge Mulrooney emphasized that these proceedings will focus narrowly on issues such as marijuana’s addiction potential and its fit within the Schedule III criteria, rather than broader debates about whether cannabis is “good or bad.”

Key points from the procedural hearing include:

1. Hearing Schedule: Testimonies will occur weekly, from Tuesday to Thursday, starting in mid-January 2025.
2. Designated Participants: Nineteen parties will participate, with each allowed to present testimony from an expert witness.
3. Time Limits: Each witness will have 90 minutes for testimony, followed by 20 minutes for cross-examination. Consolidated parties can present two witnesses over 120 minutes.
4. Deadlines: Pre-hearing filings are due on December 13, 2024, and January 3, 2025, ensuring all parties are prepared.

Judge’s Emphasis on Evidence and Expertise

Judge Mulrooney made it clear that the evidence must be concise and directly relevant. Witnesses will need to demonstrate their expertise and present clear, impactful arguments within the defined scope. Books, anecdotal evidence, and extraneous documents will not be considered.

Mulrooney also dismissed motions alleging bias or improper communications between the DEA and prohibitionist groups, though he acknowledged the complexity of such claims. He reiterated that his role is to evaluate the scientific and legal merits of rescheduling cannabis, not to serve as an arbiter of moral or political debates.

Potential Outcomes of Rescheduling

If marijuana is rescheduled to Schedule III, the implications could be significant:

• Federal Tax Relief: Cannabis businesses would gain relief from Section 280E of the Internal Revenue Code, allowing them to deduct ordinary business expenses for the first time.
• Research Expansion: Rescheduling would remove certain barriers to scientific research, potentially accelerating medical cannabis studies.
• Legal Status: Marijuana would remain federally illegal for recreational use, but state-licensed medical and adult-use markets would continue operating under current state laws.

However, as DEA noted, even with rescheduling, regulatory controls and criminal penalties related to cannabis under the CSA and the Federal Food, Drug, and Cosmetic Act (FDCA) would remain in place.

Challenges and Criticism

The rescheduling process has sparked significant public and political debate:

• Skepticism About DEA’s Position: While the DEA is the “proponent” of the rescheduling rule, its true stance remains unclear. Attorney General Merrick Garland, not DEA Administrator Anne Milgram, signed the proposed rule, raising questions about the agency’s support.
• Political Concerns: Some Republican lawmakers argue that the rescheduling effort is politically motivated, citing a lack of transparency in the review process.
• Exclusion of Stakeholders: Several groups, including a veterans’ organization, have criticized the process for excluding voices that would be directly impacted by rescheduling, calling it a “travesty of justice.”

What’s Next?

The evidentiary hearings in January 2025 will feature expert testimony and cross-examinations, likely extending through February. After evaluating hours of testimony and evidence, Judge Mulrooney will make his recommendation, but a final decision from the DEA could take months.

While the hearings mark a significant step forward in the federal approach to cannabis regulation, rescheduling alone will not resolve the complexities surrounding marijuana’s legal and regulatory status. The process is being closely monitored by industry stakeholders, policymakers, and advocates, who view it as a potential turning point for the U.S. cannabis market.

Stay Informed For updates on the DEA’s rescheduling hearings and their implications, follow our blog for the latest developments in cannabis regulation.