WASHINGTON – The Drug Enforcement Administration has kicked the rescheduling can down the road, likely indicating no decision will be made this year.
In a notice of hearing on proposed rulemaking filed Monday and due to be published Thursday in the Federal Register, the agency announced a hearing will take place December 2 in Washington, D.C. The hearing alone signals the DEA may not be ready to reschedule, but pushing the proceeding to after the November presidential election throws additional haze on the outcome. Although Vice President Kamala Harris, the Democratic nominee, strongly backs rescheduling and favors other cannabis reform measures, the Republican nominee, former President Donald Trump, so far has not committed to allowing the process to continue if he is elected.
According to the notice, “DEA received numerous requests for a hearing in response” to the notice of proposed rulemaking (NPRM) the agency published May 21. The NPRM proposed moving cannabis from Schedule I, the most restrictive classification, to the much less onerous Schedule III under the Controlled Substances Act. The potential reclassification is widely anticipated to bring tax relief and other financial benefits to cannabis businesses, though it would not affect the plant’s status as a controlled substance.
During the subsequent NPRM public comment period that ended July 22 after collecting more than 40,000 responses, organizations including Smart Approaches to Marijuana (SAM) claimed the data underlying the proposal to reschedule is flawed. SAM, a group with the stated goal of “protect[ing] the public from marijuana commercialization,” also accused the Department of Health and Human Services of ignoring relevant studies and “inventing tests” to portray cannabis as harmless as part of a presumed attempt to serve Democrats’ political agenda.
The December hearing will “receive factual evidence and expert opinion regarding whether marijuana should be transferred to Schedule III of the list of controlled substances,” DEA Administrator Anne Milgram wrote in the hearing notice. “Any person adversely affected or aggrieved by any rule or proposed rule … who wishes to participate in the hearing shall file a written notice of intention to participate for review by the agency… I will assess the notices submitted and make a determination of participants.”
Requests to participate in the hearing must be filed by September 28. Filing details are here.
Although Milgram mentioned avoiding delays and “expeditious disposition of the hearing,” she also stated the proceeding “may be continued from day to day or recessed to a later date without notice other than announcement thereof by the presiding officer at the hearing.” She additionally stated the presiding officer may issue subpoenas and compel document production, neither of which typically is quick.
