Participants in a Drug Enforcement Administration (DEA) hearing on the Trump administration’s marijuana rescheduling proposal have filed their final briefs in the proceedings—setting up the judge overseeing the matter to issue his recommendation on the reform.
DEA, which is charged with defending the proposed move of cannabis from Schedule I of the Controlled Substances Act (CSA) to Schedule III, said in its brief that “marijuana no longer fits the statutory requirements for Schedule I because it has a currently accepted medical use within the United States and it has an accepted safety for its use under medical supervision.”
The agency noted that under the law it must give “significant deference” to an “extensive ten-month study on the scientific and medical properties” of cannabis conducted by the Department of Health and Human Services (HHS), which recommended rescheduling.
“Currently there are over 30,000 practitioners treating more than six million patients in 43 U.S. jurisdictions,” DEA said. “Such practices demonstrate that there is no longer a lack of accepted safety for use of marijuana under medical supervision, and as such, marijuana does not fulfill the requirements of being a Schedule I substance.”
It also said that there is “substantial evidence sufficient to show that marijuana’s abuse and dependency profiles better align with Schedule III substances than Schedule II” or Schedule I. “The vast majority of individuals who use marijuana do so in a manner that does not result in dangers to themselves or to their communities.”
The drug agency said there is “no merit” to arguments made by reform opponents who participated in the hearing that a new two-part test federal officials used to analyze cannabis improperly departs from a former five-part test.
DEA also said that several witnesses for opposition parties “supported the therapeutic use of marijuana in certain instances” during their testimony.
“Dr. Bertha Madras (Madras), the addiction expert presented by SAM, testified that there is scientific evidence of marijuana’s efficacy for neuropathic pain patients, although she believes that the science is weak. Dr. Kenneth Finn, also a pain management physician, admitted that he previously recommended marijuana for his pain patients and currently believes that there is likely a therapeutic benefit to marijuana. His concern is mainly with the dosing and quality controls for the substance.”
Opponents also “have not offered sufficient fact or expert testimony to rebut HHS’ findings that marijuana” has a currently accepted medical use (CAMU), the agency said. “The evidence proffered by the Opposed Parties boils down simply to the fact that Schedule III marijuana poses employment and enforcement difficulties, the same as any other controlled substance in Schedules II – V.”
DEA also argued that several opposition witnesses “lacked necessary reliability and credibility and should be afforded no weight”—also saying that some of them ignored the judge’s instructions for sequestration by reading transcripts of the testimony tendered prior to their appearances, leading to their own testimony being “irreparably tainted.”
In conclusion, DEA asked the judge overseeing the hearing to “expeditiously recommend” that marijuana be transferred from Schedule I to Schedule III.
A joint brief submitted by the prohibitionist organization Smart Approaches to Marijuana (SAM) and the states of Idaho, Indiana and Nebraska began by noting that DEA and HHS have previously considered rescheduling marijuana at least nine times, and that “on each occasion, after reviewing the available scientific evidence and applying the criteria specified by the Controlled Substances Act, the Government determined that marijuana must remain in Schedule I because it (i) has a high risk of abuse, (ii) has no currently accepted medical use, and (iii) cannot be used safely under medical supervision.”
The argued that those decisions can only be reversed if DEA can show that cannabis has a risk of abuse that is lower than relevant comparator drugs, has a use in medical treatment that is accepted by established medical authorities and can be used safely under medical supervision with relatively limited dependency risks.
But the hearing showed that “all the evidence is to the contrary,” they said.
“So the Government now proposes to reschedule marijuana not based on the facts, but rather based on new and different standards—standards that are not found in the Controlled Substances Act, that run contrary to previous HHS and DEA practices, and that were devised solely for purposes of this rescheduling,” SAM and the states said, referring to the new two-part analysis used to evaluate cannabis.
“This Tribunal should reject the Government’s attempt to supplant the standards of the Controlled Substances Act and decades of agency precedent with newfound standards dreamt up only for this proceeding. Under the established legal standards, the evidence points in only one direction: Marijuana must remain in Schedule I.”
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.
A separate brief from the Tennessee Bureau of Investigation (TBI) argues that the fact the proposed cannabis rescheduling rule was issued by the attorney general instead of the DEA administrator is “enough” is enough to consider the proposal “deficient and keep marijuana in Schedule I.”
TBI also claimed that rescheduling “fares no better on the merits,” saying the evaluation neglected to consider issues such as diversion of state-licensed cannabis, “marijuana-related violent crime” and traffic fatalities from impaired drivers.
A brief from the National Drug and Alcohol Screening Association (NDASA), which represents members of the drug testing industry, expressed concerns that “if the transfer of marijuana to Schedule III is finalized, the authority of the Federal government to test for it will end.”
“Important safety and critical security personnel the federal government would no longer be subject to testing, including air traffic controllers, Secret Service, and Federal employees with security clearances. The list of DOT safety sensitive employees who perform commercial transportation duties in the private sector, in who would no longer be subject to marijuana testing would include: airline pilots, airline mechanics, locomotive engineers, school bus drivers, truck drivers, transit operators, Coast Guard mariners, and pipeline operators.”
“The prevention and deterrence that the American public has encountered for almost years would be lost if marijuana is moved to Schedule III,” NDASA said.
A brief from DUID Victim Voices and Kenneth Finn begins with an anecdote about a memorial to people who have died from fentanyl that is displayed at DEA headquarters in Virginia, where the rescheduling hearing was held:
“Every day, walking through DEA Headquarters, the participants in this hearing passed a beautiful tribute to the faces of those killed by fentanyl. While the gesture is sincere and touching, it cannot be ignored that those faces are, in part, the product of the agency’s own documented failures: opiate production quotas set too high for too long, and inadequate and delayed action against major distributors shipping suspicious volumes of opioids. The same wall of faces could just as easily be assembled for the many and growing memorial roll of young people whose minds and lives have been destroyed by marijuana… The agency now, through this proceeding, has an opportunity to limit the number of faces that will one day have to be added to that wall, rather than later acknowledge and pay homage to those fellow citizens we lost, again, due to institutional inaction in the face of a clear and present danger.”
DUID and Finn argue that DEA “failed to carry its burden” to demonstrate that marijuana has medical value—saying that its “rescheduling endeavor depends entirely on a novel analytical framework that has never been subjected to notice-and-comment rulemaking, lacks any foundation in prior agency practice, and was engineered to reach a predetermined outcome.”
The drug agency also used “fundamentally flawed” comparator methodology, “relying on substances that are pharmacologically distinct from marijuana—including alcohol, which is not a controlled substance and is not typically used as a CSA scheduling comparator,” they said.
The brief additionally claimed that DEA “systematically ignored or underweighted the grave safety and public health consequences of marijuana abuse—including psychosis, schizophrenia, suicidality, cardiovascular harms, impaired driving, diversion, and devastating workplace and transportation safety consequences.”
A brief from Phillip Drum, a pharmacist and an emergency medicine and pediatric physician, said that “marijuana, with its 300+ ‘active’ ingredients as claimed by the marijuana industry, is not a medicine”—which he called a “fraudulent statement.”
“The States are simply not regulating and protecting the public with their current practices in place. Dosages for various formulations are unknown,” the brief said. “Currently, marijuana is the active ingredient in: tampons, condoms, intravaginal suppositories, inhalers, topical creams or ointments, rectal suppositories, sublingual applications, lip balms, oral gummies, chips, candies, cereals, sodas or alcohol-infused products, and smoked versions including: dabs, waxes, joints or bong hits.”
“The harms are paramount, and are being minimized and use has been normalized by the media and popular vote making marijuana out to be as both a recreational drug and a ‘medicine,’ thus making it seem safer to the public at large,” Drum’s brief says.
DEA Chief Administrative Law Judge Derek Julius will now consider the final briefs and testimony delivered during the hearing and issue a recommendation on cannabis’s scheduling status. The final decision will ultimately be up to the DEA administrator, however.
During the hearing, DEA officials charged with defending the cannabis rescheduling proposal highlighted testimony on marijuana’s medical benefits and its relative safety compared to other substances such as alcohol and opioids. That included appearances from a Food and Drug Administration (FDA) scientist and a medical doctor from New Hampshire who detailed how medical marijuana provides relief to pain patients and can serve as an alternative to opioids.
Meanwhile, lawyers and witnesses for parties who are oppose marijuana rescheduling and participated in the hearing put significant focus on the alleged harms of cannabis use as well as criticism of recently adopted changes to an analysis used to determine whether drugs have accepted medical value.
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.”
Opposition parties that participated include Smart Approaches to Marijuana, National Drug & Alcohol Screening Association, Tennessee Bureau of Investigation, DUID Victim Voices, Kenneth Finn, Phillip A. Drum and the states of Idaho, Indiana and Nebraska.
Ahead of the hearing’s start, 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 were not livestreamed despite officials’ vows of “transparency.”
Marijuana Moment sent requests to Julius, the DEA judge, 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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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 hearing is being held to 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.
The Department of War issued a memo making clear that marijuana use by military service members and civilian employees of the department remains prohibited, even under federal cannabis rescheduling.
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.
Read the final briefs in the DEA marijuana rescheduling hearing below:
