DEA Pushes Marijuana Rescheduling Hearing To December: What Does This Mean For Cannabis?

In May 2024, the U.S. Department of Justice (DOJ) put forth a proposal to reclassify “marijuana” (the legal term for cannabis plants and their products with over 0.3% THC content) under federal law, signaling a major shift in the U.S. government’s stance on cannabis prohibition. The proposal aims to move cannabis products categorized as “marijuana” from Schedule I to Schedule III under the Controlled Substances Act (CSA), which means that cannabis would be officially recognized by the federal government as having legitimate medical use. 

However, the rescheduling process is yet to be finalized, and although some optimistic advocates expected the decision to be fast-tracked before the November 2024 election, the fight for cannabis reform will not be won so quickly. The Drug Enforcement Administration (DEA) announced in August that a hearing regarding the reclassification decision will take place on December 2, 2024, before an administrative law judge.

This hearing, which may continue over several sessions and could potentially extend over months or years, will collect factual evidence and expert testimony on the proposed reclassification. After the hearing concludes, the administrative law judge will compile a report based on the testimony given. Then, the DEA will review the report and draft a final ruling, factoring in all relevant information submitted during the public comment period.

While some stakeholders hoped for swift action, the process of reclassifying cannabis will be more complicated than originally thought. Moreover, there is also the possibility that the decision to hold the hearing was actually intended to prevent potential legal challenges that could have delayed or blocked the rescheduling process entirely.

In this article, we will explore the ongoing effort to reschedule marijuana from a Schedule I to a Schedule III drug and explain the upcoming December hearing process, detailing the promises and challenges ahead.

What Would Rescheduling Mean for Cannabis in the U.S.?

Under current federal law, cannabis is classified as a drug with a high potential for abuse and no accepted medical value, with severe legal consequences for possession and distribution. Reclassifying cannabis from Schedule I to Schedule III would instead place cannabis among less addictive drugs that can be obtained with a prescription, such as anabolic steroids or acetaminophen-containing codeine.

Now, backed with recommendations from the Department of Health and Human Services (HHS), the DOJ’s rescheduling proposal provides recognition that cannabis does, in fact, have accepted medical use. This shift in federal drug policy would allow cannabis-derived drugs to be legally available by prescription, making the drug more accessible to patients and medical researchers. Because the categorization of a controlled substance determines its availability and accessibility, the benefits of rescheduling are important to patients suffering from chronic pain, epilepsy, and other conditions.

Not only would medicinal cannabis-derived products become more legally available for patients’ use, but a successful rescheduling would also open increased opportunities for new clinical trials, helping to further the advancement of therapeutic options available. The DOJ’s proposal to reclassify “marijuana” products from the list of Schedule I substances to Schedule III indicates a remarkable change in U.S. drug policy and public opinion regarding cannabis’ status as a medicine.

Timeline: Rescheduling Efforts During the Biden Administration

President Joe Biden took important actions initiating the rescheduling process in October 2022, when the president publicly acknowledged the racial disparities in cannabis-related arrests and moved to pardon people convicted of simple possession. Additionally, President Biden directed the HHS and the Attorney General to review cannabis’ current classification under federal law. These motions brought about a significant scientific and legal review process with the potential to drastically alter the future of cannabis regulation in the United States.

In August 2023, the HHS also crucially recommended to the DEA that cannabis be relisted from Schedule I to Schedule III. This recommendation resulted from a thorough scientific and medical evaluation of cannabis by HHS, which determined that cannabis does have “currently accepted medical use” in the U.S. and, therefore, does not belong among Schedule I drugs like heroin. It was the HHS scientific evaluation, in part, that led to the DOJ’s proposed rule to reschedule cannabis to Schedule III. 

Following a historic DEA 60-day public comment period for the proposed rescheduling, during which nearly 43,000 comments were submitted, the DEA reviewed the comments and determined that a hearing in front of an administrative law judge (ALJ) is warranted. Between May 21 and July 22, 2024, a large number of state regulators, advocates, health experts, and patients submitted comments to the DEA, more than during any other DEA comment period in the past.

Nonetheless, the DEA holds the final authority in the rescheduling process, and it has yet to endorse the “currently accepted medical use” standard for cannabis. The December 2 hearing represents a critical juncture in this years-long rescheduling process. While the HHS’s recommendation for rescheduling provides a significant shift in federal recognition of cannabis, the DEA must still conduct a full review of the evidence presented at the hearing before making a final determination.

What the December Hearing Means for Cannabis Advocates

While many cannabis industry stakeholders had hoped the DEA would issue a final rule before the November 2024 election, the announcement of a December 2 ALJ hearing means that the timeline will be delayed significantly. DEA Administrator Anne Milgram, who holds the authority to grant an ALJ hearing, scheduled the December 2 hearing to “receive factual evidence and expert opinion regarding” the DOJ’s proposed rule to reschedule cannabis under the CSA. 

The December hearing will allow interested parties, including medical professionals, cannabis industry representatives, and advocacy groups, to voice their positions on the proposal. Those wishing to participate must file formal requests detailing their interests and objections, ensuring a thorough administrative review that could delay the final ruling for months or even years. Had Milgram decided against the ALJ hearing, the DEA’s final rule could have been fast-tracked. However, some advocates point out that bypassing the hearing may have increased the chances for litigation to delay or block the implementation of the final rule.

The NPRM (Notice of Proposed Rulemaking) issued in May 2024 noted that, even if cannabis is rescheduled, it will remain subject to criminal prohibitions under the CSA, and any drugs containing cannabis would continue to be regulated by the Federal Food, Drug, and Cosmetic Act (FDCA). Thus, rescheduling cannabis to Schedule III would still leave the drug subject to CSA and FDA regulations, but it would significantly reduce the penalties associated with cannabis use and acknowledge that cannabis has legitimate medical benefits. 

After the hearing is completed, a presiding administrative law judge will write and file a report on the testimony provided. Then, the DEA will need to review the report and provide a final rulemaking based on further consideration of all evidence gathered during the public comment period.

Looking Ahead: The Future of U.S. Cannabis Policy

With the December hearing taking place after the November 2024 election, there is a risk that a change in administration could shift the trajectory of cannabis rescheduling. Should Vice President Kamala Harris take office, many anticipate a continuation of Biden’s cannabis-positive policy endorsements. On the other hand, the outcome of the rescheduling movement under a Trump administration is more uncertain.

Furthermore, aligning federal policy with the inconsistent puzzle of state-level cannabis regulations poses considerable difficulties. Although rescheduling cannabis could increase researcher and patient access to the plant, Schedule III substances face stricter regulation and testing requirements than cannabis currently does under many state laws. It is unknown how policies enforced by federal agencies, such as the FDA and the DEA, will affect the cannabis markets in various states. Additionally, there are cannabis advocates who worry about the potential long-term effects rescheduling can have on smaller cannabis businesses that may struggle to compete with larger, well-funded entrants from the pharmaceutical industry.

The DEA’s move to consider rescheduling cannabis marks a pivotal moment in US federal drug policy. While the path to reform has been slow since President Biden’s decision to initiate the rescheduling process in October 2022, research continues to support rescheduling by indicating the efficacy of cannabis in treating conditions such as chronic pain, epilepsy, and anxiety.

The reclassification signals progress toward aligning the justice system with modern scientific knowledge, but it also brings new layers of legal and social complexity. As the outcome will likely have significant repercussions for cannabis research, medical access, and regulatory structures, stakeholders from all sides are paying close attention. Although the DEA decision has been delayed, the movement is nonetheless making history and shaping the future of cannabis policy across the nation.