The hearing on the Notice of Proposed Rulemaking for the rescheduling of “marijuana” commenced on June 29, 2026 and will end tomorrow, July 15th. The Government brought two witnesses to the stand on the first day, and then seven prohibitionist organizations had the floor for the remaining seven days of the hearing. As I discussed in an earlier post, the decision not to allow proponents a chance to participate raised flags for me, but it wasn’t necessarily a doomsday scenario.
If you listen to most industry participants who are “reporting” on this hearing, you would think that DEA has stepped into the proponents’ shoes and done everything the industry would have done had it participated. My LinkedIn feed is flooded with this kind of enthusiasm. What is so interesting about all of this is that when you hear from those actually in the room, the enthusiasm shifts to skepticism. Two reporters: Natalie Fertig, in an interview with Cultivated Media; and Emily Dufton, in her three part series in WeedWeek, have attended the hearings. They have questioned DEA’s handling of this hearing. Both have discussed how DEA is not putting on much of a show at all. Dufton discussed in her latest installment how DEA’s own witnesses, especially Dr. Corey Burchman, did not perform especially well. During the prohibitionists’ case in chief, DEA has offered few objections, and it abstained from cross examining most witnesses at all.
As both reporters have suggested, this may be DEA’s strategy. DEA may believe that it has a winning case, so its focus should be only proving that marijuana has at least some medical efficacy and has not killed anyone. The problem with this, as I noticed in Fertig’s interview, is that there is another option outside of Schedule I and III that the ALJ can choose–Schedule II. It seems like everyone has forgotten this option. Schedule II acknowledges medical efficacy and includes substances with less harm than those in Schedule I. For an ALJ who seems to know very little about marijuana, it would make sense for him to go with II, if all he is hearing is refer madness from prohibitions and little rebuttal from DEA.
What is DEA doing in the marijuana rescheduling hearing?
As I mentioned in my earlier post, those in the know within the industry believe Schedule III is a done deal. If you believe that, then the hearing doesn’t mean anything as far as what DEA will ultimately decide. The one issue I have with that argument is this: if it were such a done deal, the Acting Attorney General would have just moved “marijuana” into Schedule III in the first place. He could have then issued proposed rules for the medical framework that is currently being litigated in the DC Circuit. This would have protected the final rule from the likely overreach of the medical marijuana framework and avoided the potential problem of the ALJ recommending Schedule I or II. There was never a need for a hearing on the rescheduling of “marijuana.” In fact, DEA ALJ hearings are extremely rare. The AG could have just moved marijuana into Schedule III under a final rule, skipping the hearing altogether. Instead, DEA risked an ALJ that could recommend Schedule I or II, which would weaken DEA’s argument on challenge at the DC Circuit.
Do DEA’s actions during the hearing tell us anything about what’s going on behind the scenes?
I don’t think so. This strategy could make sense whether DEA is a true proponent, or an opponent, of the proposed rule. We know, based on the first rescheduling hearing, that DEA personnel are against rescheduling. So, the complacency we see in this hearing could just be employees who don’t care about the outcome. Either they don’t want to put on a strong showing and are just doing the bare minimum to save face, or they have already been told Schedule III is a done deal and are, again, just doing the minimum to save face. The other possibility is that DEA is actually a proponent of this rule and is strategically laying back, believing the evidence speaks for itself.
There are two problems with that latter theory. First, by laying back at the hearing, DEA is resting on the ALJ accepting Schedule III. While a DEA decision may be forgone, I assume the ALJ’s decision is not. Second, this is the DEA we are talking about. Until about five minutes ago, DEA was buddies with Kevin Sabet and continues posting anti-marijuana warnings.
A side note
In 2023, DEA suggested that instead of doing drugs, kids should focus on becoming Instagram influencers. I bring this up in particular because marijuana’s potential effect on youth mental health and harm on children’s brains is a focus of this hearing, and of prohibitionist arguments in general.
Some studies have shown that frequent social media use, reported by approximately 75 percent of high school students, is associated with a greater prevalence of bullying, feelings of sadness and hopelessness, serious consideration of suicide, and having made a suicide plan. The CDC reports that 22 percent of all U.S. high school students seriously considered attempting suicide in 2021, up from 16 percent in 2011. Meanwhile, the suicide rate for people aged 10 to 24 rose 62 percent from 2007 through 2021, reaching 11.0 suicides per 100,000 people in that age bracket. Even if only one of those deaths were caused by social media, social media would still be deadlier than marijuana. Marijuana is not even a substance the CDC tracks for drug overdoses, and to my knowledge no one has died from marijuana consumption.
So, based on this data, I assume prohibitionists should want to ban all social media. Some harms comes from it and therefore it should be banned, right? I mean that is SAM et al.’s argument. Because some people experience extremely negative effects from something, it should be banned. Except for alcohol. Those harms are fine. As I write this, it sounds crazy, that’s the argument being presented.
As a society all of our decisions need to be made by balancing harms and benefits. If we banned everything that could harm someone, we would not have any legal intoxicants. We would also prohibit nutmeg, Tylenol, poppy flowers, and so much more. The goal instead needs to be finding balance, educating people about the potential harms, and making sure resources are available to those who need help navigating addiction, whether that addiction is to social media or marijuana.
Back to the DEA hearing
Whether DEA is doing this out of complacency or strategy, we are going to end up with a slim hearing record that will substantially support the prohibitionist’s arguments. If the ALJ comes back with a recommendation of Schedule I or II, but DEA moves forward with Schedule III anyway, that will be a win for SAM at the DC Circuit. Instead of DOJ having to argue only the merits of moving straight to a final rule without going through a hearing, it will have to argue that the ALJ got it wrong and explain why DEA decided not to listen to the prohibitionists and the ALJ. It will have to defend a scientific HHS record that is several years old against the arguments brought by the other side this year.
An interesting point about the prohibitionists’ arguments
I decided to check out a prohibitionist report on the hearing to see what it had to say, and I was surprised at how weak some of their arguments were. Maybe this is why DEA is just sitting back. I am not surprised that much of what they are saying is nonsense, but surprised at how many holes are in their arguments.
For example, on Tuesday the 7th, the hearing turned to drugged driving risks. The prohibitionists put forward Ed Wood, a father who lost his son Brian in a car crash that killed him instantly. The vehicle that hit Brian was driven by two drug impaired women. Both drivers tested positive for marijuana and methamphetamine, and one also tested positive for heroin. First off, this is an unimaginable tragedy for Mr. Wood, one I can’t imagine living through, and my heart goes out to him and to all of Brian’s family and friends. But that sadness and empathy for the loss of Brian does not justify the proposal Mr. Wood was making. The drivers (the article does say “drivers”, plural, and I am very interested to read the transcript on this point once it is available), were not just on marijuana. They were on methamphetamine, and one was also on heroin. These are two substances known to cause much more intense reactions in users, and methamphetamine is also technically a “less dangerous” drug based on its Schedule II designation. That alone is a perfect example of why marijuana belongs on at least Schedule III. Anyone with eyes, ears, and half a brain knows marijuana is less dangerous than methamphetamine.
Further, the fact that the prohibitionists could not produce a single witness who could testify to a vehicle death caused by someone solely on marijuana says a great deal about how weak their argument really is. Here’s another interesting point. I would assume it would be fairly easy to find someone who lost a loved one in a car accident caused by a drunk driver who also tested positive for marijuana. But there is no way SAM would allow that kind of witness to take the stand. Since alcohol has been used by Western civilization for thousands of years, marijuana must be the real problem, right?
This, however, highlights why DEA sitting back and doing nothing is a problem. DEA should have raised the issue of methamphetamine and heroin also being in the drivers’ systems. The ALJ, presumably not a monster, is going to empathize with stories like this one. Hopefully his decision will focus only on medical efficacy and potential for harm, but it is possible emotion will creep in, and he will land on a compromise by recommending Schedule II.
The unimpeachable argument: medical efficacy and Epidiolex
One noticeable omission from this hearing appears to be a robust defense of marijuana’s medical efficacy. Yes, DEA made something of a showing on the first day, but I have not heard the following argument made at all: Epidiolex, when it was approved and moved into Schedule V in 2018, was marijuana. It came from marijuana, and even in its final FDA approved form, it fell within the definition of marijuana. That decision was made prior to passage of the 2018 Farm Bill, so Epidiolex is unquestionable proof that marijuana has medical efficacy. That fact alone should remove Schedule I from the conversation.
What’s next for marijuana rescheduling
We have no idea how long the ALJ to issue his recommendation, following the conclusion of the hearing on July 15th. He is not tied to any deadline: it could be quick, or it could take months. Further, once his recommendation is made, DEA is also not tied to any timeframe for making its decision. Again, it could be quick, or it could take months. Assuming you believe that Schedule III is bought and paid for, the decision should come pretty quickly. The longer it takes, the more worried I will become.
From what I have heard, the Administration believes this is a winner for November, but I can’t imagine that is as true an argument as it may have been before this year. According to Nate Silver, the Administration is currently dealing with a 56.5% disapproval rating and a 39.7% approval rating. With so much for voters to either love or hate about this Administration, I can’t imagine Schedule III will move the needle much come November.
Conclusion
What we are left with, after fifteen days of hearings, is a lopsided hearing record built almost entirely by the side that opposes rescheduling, with DEA offering little pushback of its own. Whether that was complacency or strategy may not matter much in the end, because either way it hands the prohibitionists a stronger foundation for their arguments than the facts actually support.
For more on marijuana rescheduling and the DEA rulemaking process, please check out these recent posts:
The post The Quietest Fight of DEA’s Life: Reflections on the Marijuana Rescheduling Hearing appeared first on Harris Sliwoski LLP.
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