A Drug Enforcement Administration (DEA) judge has rejected marijuana rescheduling opponents’ request to reopen an ongoing hearing on the Trump administration’s proposed reform for a new round of testimony and document discovery—but he is allowing a federal watchdog report that found there are “gaps” in the government’s process for evaluating controlled substances to be entered into the record and is inviting parties to submit additional briefs about it.
DEA Chief Administrative Law Judge Derek Julius on Thursday said that some of the information that cannabis rescheduling opponents want new testimony and discovery about is “immaterial for the narrow purpose of this hearing” and others “could have been explored” by hearing participants during questioning of witnesses during the hearing.
Julius said that opponents’ arguments about a report that was published last month by the Government Accountability Office (GAO) are the “strongest” grounds to reopen the hearing, but instead of ordering more testimony and document discovery on the matter, he will add the report to the record and allow the parties to file additional briefs about it.
The watchdog agency’s review found, among other things that DEA “does not have any policies or procedures regarding how its staff are to conduct evaluations or schedule substances” and the Food and Drug Administration within the Department of Health and Human Services (HHS) “does not have policies or procedures specifying how its staff are to conduct evaluations or develop scheduling recommendations for substances.”
The judge said, however, that the issue is “not before the tribunal, and allowing testimony on it would only serve to confuse the matter.”
“The GAO is not a party to this litigation, and the GAO Report speaks for itself regarding its conclusions on the general rescheduling process and documentation about that process,” he wrote. “Now that the GAO report is a part of the record, no further testimony is required concerning it.”
“Briefing is another matter. While the contents of the GAO Report speak for themselves, the weight the tribunal should give to the GAO Report and what impact if any it has on this specific case are other matters—ones on which the parties disagree. Accordingly, I will permit limited briefing. The briefs should be narrowly tailored to the issues of (1) the weight, if any, the tribunal should give to the GAO Report; and (2) if it should be afforded weight, to what extent the GAO Report has an effect on the current rescheduling matter (i.e., are the ‘gaps’ in written rescheduling policies identified by the GAO Report substantial enough to jeopardize the larger process and specifically impact the instant rescheduling proposal before the tribunal).”
Julius said that rescheduling opponents and DEA “appear closer aligned in their understanding of the GAO Report than their postures may indicate.”
“The division stems from the bearing the GAO Report has on the present rescheduling matter; therefore, it is more an issue of weight and impact on this specific case,” he said.
The parties are not being required to file any briefs on the matter, but are invited to submit initial filings by October 29 and any replies by November 5.
“Requests for further briefing on these issues beyond the replies allowed above are disfavored,” Julius said. “The Motion to Admit the GAO Report is GRANTED. This matter remains STAYED until the time for briefing is closed; the stay will expire by its own terms at the conclusion of this briefing schedule.”
DEA said in a brief filed this week that opponents’ request to reopen the hearing is an “obvious fishing expedition based on a Report that is clear on its face”.
DEA said in a brief filed earlier this month that it is fine with including the GAO document in the hearing record, as opponents have pushed for, but it did not want any further briefings on the matter.
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 he signed, the DEA hearing was held in June and July to consider more comprehensively moving marijuana to Schedule III.
“The Government is not putting forth any evidence to suggest that marijuana is not dangerous. All controlled substances by definition are dangerous,” James Schwartz, a DEA attorney, said on the opening day of the hearing, according to the transcript. “That is why they are scheduled in the first place. However, controlled substances must be evaluated by the risks they pose balanced with the medical use they provide.”
“The proposed rule, the supporting documents, and the Government witnesses will establish that marijuana has a currently accepted medical use,” he said. “With that determination, marijuana can no longer remain in Schedule I.”
Meanwhile, DEA and parties that participated in the marijuana rescheduling hearing laid out their arguments in final briefs.
The federal agency, which was charged with defending the proposed rescheduling move, 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.”
In conclusion, DEA asked the judge overseeing the hearing to “expeditiously recommend” that marijuana be transferred from Schedule I to Schedule III.
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 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.”
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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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.
The U.S. Court of Appeals for the District of Columbia Circuit recently rejected a drug testing industry association and a pharmaceutical company’s request to block the Trump administration from moving forward with cannabis rescheduling while the litigation is considered. The parties have jointly filed a proposed briefing schedule for the legal dispute.
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 latest order in marijuana rescheduling hearing below:
