A Drug Enforcement Administration (DEA) judge has issued an initial order laying out basic rules for a hearing about the Trump administration’s cannabis rescheduling process that is set to start later this month.
Chief Administrative Law Judge (ALJ) Derek Julius signed the 12-page order on Thursday, setting initial timelines for designated parties that will be participating—which under a separate announcement from DEA this week only includes opponents of cannabis reform.
Julius noted that the government, “as the proponent of the proposed rule, has the burden of proof” in defending moving marijuana to Schedule III. Officials will need to file notices of appearances for government representatives by no later than Monday, he said.
Acting 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 attorning general signed, the upcoming hearing will consider more comprehensively moving marijuana to Schedule III.
“Importantly, the scope of this hearing is not to discuss the rescheduling of medical products approved by the Food and Drug Administration that contain marijuana and of medical marijuana products already regulated by the states, which has already occurred,” the ALJ said in the new order. “Accordingly, no evidence or testimony will be received on that matter. The narrow issue in this matter is whether the remainder of marijuana, as defined in the CSA, should be transferred from its current place on schedule I of the list of controlled substances to schedule III.”
The hearing will be held at a DEA facility in Arlington, Virginia and will begin on June 29 and last through July 15, Julius said. Representatives of designated parties must appear in person, while called witnesses can appear either in person or by video teleconference.
The proceedings will “not be televised, livestreamed, or broadcasted in any way,” the judge said, though members of the public can attend in person due to “national public interest in this issue.”
“With the exception of the function of the court reporter, permission is explicitly withheld from any attendee to use any video or audio recording device at any time while inside the courtroom or the adjoining lobby area,” Julius wrote.
The order lays out a process for how each participant will present its case and how the government and interested parties can cross-examine one another:
- Each Designated Party will have an assigned day on which they will present their case-in-chief.
- Each Designated Party will be allotted fifteen (15) minutes for their opening statement. Opening statements will be given at the start of a Designated Party’s case-in-chief.
- Each Designated Party may present up to two (2) witnesses. Each witness may testify on direct examination for no more than two (2) hours. Should a Designated Party elect to present only one witness, that witness may testify on direct examination for up to four (4) hours.
- Each Interested Party may cross-examine (each of) the Government’s witness(es) for no more than one (1) hour. The Government may cross-examine each of the Interested Parties’ witnesses for no more than one (1) hour. At the conclusion of all of cross examination of a particular witness, the party calling the witness may redirect for no more than one (1) hour. Interested Parties will not be permitted to cross examine one another’s witnesses.
- Designated Parties will not be permitted to voir dire proposed expert witnesses prior to testimony. All expert determinations will be made following the hearing and objections to expert qualifications should be made in writing.
- Witnesses will not be permitted to be in the courtroom before or after their testimony.
- Objections to evidence or testimony will be heard during the hearing and should be made orally. When objecting, counsel will cite the rule for their objection and the reason for their objection, the proponent of the evidence or testimony may briefly respond, I will rule on the objection and the hearing will continue without further discussion. See 21 C.F.R. § 1316.60.
- Rebuttal testimony, if any, will be limited. The undersigned will make determinations regarding rebuttal testimony during the hearing as they arise.
- Time will not be allotted for closing arguments. Each party will be given an opportunity to file post-hearing briefs in accordance with 21 C.F.R. § 1316.64. More instructions on this will be provided at the conclusion of the hearing.
- Unless otherwise noted, Designated Parties may not surrender time in one area in exchange for more time in another area (e.g., a party may not forgo redirect in exchange for more time in its direct).
- Only one representative from a Designated Party may address the tribunal at a time.
“Using the information provided by the Designated Parties…no later than June 24, 2026, this tribunal will issue a detailed hearing schedule outlining the times in which each party will present its case via a subsequent order,” the ALJ said, adding that by the same day designated parties need to “file a brief prehearing statement, not to exceed twenty-five (25) pages.”
By the following day, they will need to “exchange their proposed exhibits with one another and shall file their noticed and proposed exhibits,” Julius ordered.
Under the earlier action by DEA Administrator Terrance Cole, the invited participants in the hearing are:
- National Drug & Alcohol Screening Association (NDASA)
- Tennessee Bureau of Investigation
- Smart Approaches to Marijuana (SAM)
- The States of Nebraska, Idaho, Indiana, and Louisiana
- DUID Victim Voices
- Kenneth Finn, MD
- Phillip A. Drum, PharmD
All of the organizations, individuals and officials have expressed opposition to marijuana reform, and some have filed litigation in an attempt to block cannabis rescheduling specifically.
No reform supporters who expressed intent to participate have been invited.
According to several rejection letters Marijuana Moment has seen from cannabis reform supporters, DEA said 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.”
In one such letter to the Drug Policy Alliance (DPA), Cole wrote that the agency “concludes that you have not demonstrated you are adversely affected or aggrieved by the promulgation of a proposed rule transferring marijuana, as listed in 21 CFR 1308.11(d)(23), marijuana extracts, as defined in 21 CFR 1308.11(d)(58), and naturally derived delta-9-tetrahydrocannabinols from schedule I t o schedule III of the CSA, as proposed in the” notice of proposed rulemaking (NPRM).
“Indeed, you state that DPA supports removing marijuana from schedule I and ‘does not oppose’ the transfer of marijuana to schedule III. Further, any conceivable harm that DPA claims it would suffer from the NPRM would exist regardless of whether marijuana is transferred to schedule III or remained in schedule I. In other words, DPA is not adversely affected or aggrieved by the promulgation of the proposed rule to transfer marijuana to schedule III. Because DPA has failed to sufficiently demonstrate that it is adversely affected or aggrieved by the proposed rule itself, DEA concludes that DPA is not an ‘interested person.’”
“Accordingly, DEA denies your request to participate in the hearing,” Cole told DPA.
In order to be considered for participation in the hearing, parties needed to file requests articulating their interest in the proceeding, the objections or issues they wish to be heard on and their position on those issues.
“The purpose of the hearing is to ‘receiv[e] factual evidence and expert opinion regarding’ whether marijuana should be transferred to schedule III of the list of controlled substances,” Blanche’s initial notice, filed in April, said.
The attorney general will also select an administrative law judge (ALJ) to oversee the proceedings.
“The ALJ’s authorities include the power to hold conferences to simplify or determine the issues in the hearing or to consider other matters that may aid in the expeditious disposition of the hearing; require parties to state their position in writing; sign and issue subpoenas to compel the production of documents and materials to the extent necessary to conduct the hearing; examine witnesses and direct witnesses to testify; receive, rule on, exclude, or limit evidence; rule on procedural items; and take any action permitted by the presiding officer under DEA’s hearing procedures and the” Administrative Procedures Act, Blanche wrote.
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.
A congressional committee recently voted to block federal officials from taking further steps to carry out cannabis rescheduling.
Photo elements courtesy of rawpixel and Philip Steffan.
