WASHINGTON – Cannabis rescheduling is up in the air again after the administrative law judge assigned to hear arguments for and against the proposal abruptly cancelled a hearing scheduled for January 21 and indicated the process may need to back up a step or two before it can move forward.
At issue are allegations of bias leveled against the Drug Enforcement Administration (DEA), whose role in the proceedings was to have been defending its own proposal that cannabis be moved from Schedule I to the much-less-restrictive Schedule III under the Controlled Substances Act. But, according to Village Farms International Inc. and nonprofit advocacy group Hemp for Victory, DEA’s “improper ex parte communication” with cannabis rescheduling opponents including the Tennessee Bureau of Investigation and Smart Approaches to Marijuana, along with DEA Administrator Anne Milgram’s decision to exclude the State of Colorado from the list of designated participants, should disqualify the agency and remove it from the process.
In a ruling issued January 13, DEA Chief Administrative Law Judge John Mulrooney II stated he lacks the authority to disqualify the agency but gave the complainants leave to file an interlocutory petition requesting the incoming administrator reconsider Milgram’s designated participants list. That could put a significant wrinkle in the rescheduling schedule: The day after his inauguration, President Donald J. Trump tapped retired DEA special agent and “narco-terrorism” expert Derek Maltz, an outspoken skeptic of rescheduling, to serve as interim DEA administrator. Maltz faces no deadline for deciding when or whether to consider the petition.
So, “the matter is on stay here, and the administrator will issue a briefing schedule, entertain oral argument if he desires, and issue a binding, written decision” governing how to proceed, Mulrooney wrote in his decision. The judge indicated he would review progress toward a resolution every ninety days.
Cabinet-level personnel changes also may affect the cannabis rescheduling process. Although Health and Human Services Secretary nominee Robert F. Kennedy Jr. has voiced support for legalizing cannabis and some psychedelics, Attorney General nominee Pam Bondi has been a vocal opponent of legalization since her stint as Florida Attorney General (2011–2019). As head of the Department of Justice, which includes the DEA, the attorney general will have a say in the decision.
Cannabis rescheduling progress
This is the second time Mulrooney has delayed progress. During the initial hearing on December 2 — which already was later than the industry hoped hearings would start — he requested more documentation from the twenty-five designated participants. Mulrooney set two dates for delivery of those materials, left a little time to mull whether all designated participants were, in fact, qualified, and settled on January 21 as the date he would begin hearing testimony.
While moving the plant to Schedule III would remove some research barriers and eliminate certain federal tax-deduction restrictions imposed by Internal Revenue Code Section 280E, rescheduling would not federally legalize cannabis.
