Law and Politics: Why Marijuana Rescheduling’s One-Sided Hearing Matters

On April 28, 2026, Acting Attorney General Blanche (“AG”) issued a notice of hearing concerning the proposed rule to move marijuana from Schedule I to Schedule III of the Controlled Substances Act (“CSA”). The notice replaced the hearing that began in December 2024 (“2024 Hearing”), which the AG terminated upon issuing the new notice.

The hearing invited interested persons, as defined in 21 CFR 13011.01(b), to file a notice of intention to participate. Under that regulation, an interested person is someone adversely affected or aggrieved by “any rule or proposed rule issuable pursuant to []  21 U.S.C. 811,” the provision governing rescheduling under the CSA.

On June 18, 2026, the DEA published the participant list for the new hearing. The seven approved participants all oppose rescheduling. That fact has generated significant debate within the cannabis industry, not because of who was selected, but because of who was not.

When I first saw the list, I did not view it as particularly significant. At first glance, these participants appear to fit within DEA’s definition of interested persons. Proponents of Schedule III generally do not. After spending more time thinking about it, I began to question my initial reaction.

The central issue is straightforward. The hearing will consist entirely of prohibitionist arguments. No invited participant will be present to rebut those arguments or affirmatively advocate for Schedule III. Many will correctly note that HHS’s recommendation, DEA’s proposed rule, and the nearly 43,000 comments (70% of which support rescheduling) submitted during the notice-and-comment process already contain the arguments in favor of rescheduling. That is true. Even so, there is something inherently problematic about a proceeding in which only one side is allowed to present its case.

As I discussed this issue with others within the industry, two competing views emerged. One side sees rescheduling entirely as a political process. From that perspective, the participant list is largely irrelevant because the ultimate outcome will be driven by politics rather than procedure. The other side focuses on the administrative record, where evidence, not politics, will determine the outcome. Under that view, excluding proponents matters because it creates a one-sided proceeding that could influence future litigation and the DEA’s ultimate decision..

The legal argument

Standing

In the 2024 Hearing, proponents were permitted to participate after successfully arguing that they qualified as “interested persons” because they would be adversely affected by rules DEA would need to promulgate if marijuana were moved to Schedule III. The current hearing relies on the same definition of “interested person” and the same underlying statutory framework. Yet this time, no proponents were permitted to participate. The obvious question is: what changed? It wasn’t the law.

DEA has not explained why proponents who were deemed sufficiently affected to participate in the 2024 Hearing are no longer sufficiently affected in 2026. That omission is particularly noteworthy given that the potential outcomes remain the same. DEA could move marijuana to Schedule III, leave it in Schedule I, or place it in Schedule II. Each of those outcomes would directly affect the interests of those advocating for rescheduling.

Even after proponents were permitted into the 2024 Hearing by DEA, the ALJ in the case applied a separate four-part framework to determine whether proponent participation was appropriate. Under that framework, only the National Cannabis Industry Association was granted full standing, although several other proponents were permitted to participate in a more limited capacity. Importantly, Judge Mulrooney considered whether a participant’s involvement “would meaningfully assist the decision-making.” That consideration appears to be absent from the current hearing, despite the fact that proponents could provide arguments, evidence, and perspectives that are otherwise missing from the record.

The 2024 Hearing recognized that proponents had a sufficient interest in the outcome to warrant participation. The same conclusion should apply here. The definition of “interested person” extends to anyone adversely affected by a rule or proposed rule that DEA is authorized to issue. Because DEA has the authority to maintain marijuana in Schedule I, move it to Schedule II, or place it in Schedule III, proponents of rescheduling plainly have interests that could be affected by the agency’s final decision. In most legal contexts, parties whose interests may be materially impacted by government action are afforded an opportunity to be heard. Excluding proponents from this hearing therefore raises legitimate questions not only about fairness, but also about whether the administrative record will fully reflect the arguments and evidence on both sides of the issue.

This exclusion of qualified parties raises serious concerns as to the DEA and ALJ’s motives for the hearing. Administrative hearings generally impose broader and more flexible requirements that than Article III courts. Article III standing should serve as the ceiling for participation, not the floor. Federal courts routinely recognize the importance of allowing affected parties to protect their interests, even when they are not parties to the litigation. Federal Rule of Civil Procedure 24, for example, permits intervention when a non-party’s interests may be impaired by the outcome of a case.

While an administrative hearing is not federal litigation, the underlying principle is the same. When individuals or organizations have a meaningful stake in the outcome, there is value in allowing their arguments and evidence to become part of the record, ensuring not only a more complete evidentiary record but also a fair and balanced proceeding. Here, proponents of Schedule III have a direct interest in the outcome, yet they have been excluded from participating.

Administrative record

That is why the one-sided nature of this hearing is concerning. The issue is not simply fairness. It is whether the administrative record will fully reflect the arguments on both sides of one of the most significant drug policy decisions in modern history. As the 2024 Hearing demonstrated, preserving the record matters. Any final scheduling determination will almost certainly be challenged in court, and the record developed during these proceedings will play a central role in that review.

Some have argued that allowing only prohibitionists to participate could ultimately strengthen a final Schedule III determination. Under that theory, if DEA moves forward with rescheduling after hearing only from opponents, a reviewing court could conclude that critics were given every opportunity to present their case. That argument has some merit.

The concern here arises if DEA ultimately declines to move marijuana to Schedule III and instead places it in Schedule II. A Schedule II determination would acknowledge accepted medical use while leaving many of the industry’s most significant tax burdens intact. If that is the outcome, the hearing record may consist largely of prohibitionist testimony, prohibitionist studies, and prohibitionist interpretations of the evidence. DEA would effectively be left as the only entity defending its proposed rule and HHS’s recommendation.

That is a risk the industry should not ignore. Regardless of where marijuana is ultimately placed, litigation is virtually certain to follow. The question is whether the record being developed today will be strong enough to withstand that challenge tomorrow.

This concern becomes even more significant given the longstanding speculation about opposition to rescheduling from within the DEA. When former DEA Administrator Anne Milgram did not sign the proposed rule, questions emerged about whether resistance within the agency led to her decision. Whether those concerns were justified remains unclear, but they illustrate why some observers are uneasy about relying exclusively on DEA to defend the proposal.

The industry should not focus solely on whether DEA ultimately issues a final order moving marijuana to Schedule III. It should also be focused on the administrative record that will accompany that decision into the inevitable litigation that follows. Regardless of where DEA ultimately places marijuana, a legal challenge is almost certain.

That reality makes the composition of the record critically important. If the record consists primarily of HHS’s recommendation, public comments, and a hearing dominated by prohibitionist arguments, courts may be left with an incomplete picture of the evidence supporting rescheduling. While HHS’s recommendation remains a significant piece of the record, it was completed years ago and will undoubtedly be challenged by opponents using more recent studies and data.

Proponents of Schedule III often point to HHS’s findings as the strongest indication that rescheduling will ultimately occur. That may prove to be correct. The problem, however, is that HHS’s recommendation cannot defend itself. If opponents present current studies, expert testimony, and critiques of HHS’s analysis during the hearing, someone must be prepared to respond. Without proponents participating in the proceeding, many of the studies, experts, and arguments supporting rescheduling may never become part of the hearing record.

Another issue involves the prohibitionist argument regarding HHS’s accepted-medical-use analysis. SAM and others contend that HHS’ reliance on a new two-factor framework rather than the five-factor approach historically associated with FDA review was arbitrary. There is nothing inherently improper about an agency modifying its analytical framework. Agencies do so regularly. The problem is that if neither HHS/FDA nor outside proponents actively defend the rationale during the hearing, those arguments may never be fully developed in the record.

That is why preserving the record matters just as much as the ultimate scheduling determination. The issue is not simply whether DEA reaches the correct outcome. It is whether the record supporting that outcome is robust enough to withstand judicial review.

Of course, all of this assumes that legal process is what ultimately drives the outcome. Many within the industry believe that assumption is wrong.

The politics

Many observers view rescheduling primarily through a political lens. Under that perspective, the hearing itself is secondary. What matters is whether the administration has already decided where it wants to land.

I have seen this industry argue this dynamic before. When Senators Booker, Schumer, and Wyden introduced the Cannabis Administration and Opportunity Act (“CAOA”), the industry urged patience and confidence in Sen. Schumer and the legislative process. When Sen. Schumer shelved a vote on SAFE Banking in favor of the CAOA, critics were told not to worry and to trust that meaningful reform was coming. Despite continually fundraising on cannabis liberalization, Sen. Schumer was never going to push meaningful reform that could pass Congress.  The same thing could be happening here.

I hear similar arguments today. Many people assume Schedule III is inevitable because of President Trump’s prior statements supporting reform. I am not nearly as confident. Political support is not the same thing as a final decision, and anyone who has followed cannabis policy for the last decade knows how quickly expectations can change.

That uncertainty is one reason the hearing itself remains important. If Schedule III were truly inevitable, one could reasonably ask why DEA chose to hold another hearing at all. DEA already possessed HHS’s recommendation, its own proposed rule, and a substantial public record. There were legal pathways available that did not require the process now unfolding. The hearing is not needed.

That does not mean rescheduling will fail. It simply means that confidence should not be mistaken for certainty.

Change in political landscape

At the same time, the political landscape has changed. Many within the industry believe that the path to Schedule III depends less on legal arguments and administrative procedure than on political relationships and influence. Whether that view is correct remains to be seen, but it reflects a growing belief that marijuana rescheduling has moved beyond traditional administrative law and into the realm of executive discretion and political decision-making.

That belief has fueled much of the optimism surrounding Schedule III. If the outcome has already been decided at the highest levels of government, then the hearing itself may be little more than a procedural formality. Under that view, concerns about who participates in the hearing, what evidence is presented, and how the record is developed become far less significant.

Future litigation

The problem with the “political influence” argument is that it focuses almost entirely on the decision itself and not on what happens afterward. Even if political influence ultimately contributes to a Schedule III determination, the resulting order will still be subject to judicial review. Circuit courts are not going to evaluate political relationships or campaign promises. In fact, relying on a quid pro quo for rescheduling could backfire and lead a court to side with opponents. A court is going to care about the merits and administrative record, not living up to a quid pro quo.

That brings us back to the central concern raised throughout this article. If the record presented to the court is dominated by prohibitionist testimony, prohibitionist studies, and prohibitionist arguments, then even a favorable scheduling determination could face significant challenges on appeal. The same reasoning that many believe guarantees Schedule III could ultimately increase the importance of the hearing record that is being created today.

Conclusion

The ALJ for this hearing just issued an order laying out the process for this hearing. While opponents retain control of arguments presented, the DOJ/DEA retain the ability to call their own witnesses during the hearing. That may provide one of the clearest indications of where the agencies actually stand on rescheduling. If DOJ/DEA call representatives from HHS/FDA, or other witnesses who support Schedule III and can defend HHS’ recommendation against the prohibitionist arguments raised during the hearing, that would be a positive sign for the prospects of rescheduling. On the other hand, if they decline to present witnesses in support of their own proposed rule, it could signal that the road to Schedule III remains far longer–and more uncertain–than many in the industry currently believe.

The significance of this hearing depends on a question that nobody can yet answer: is marijuana rescheduling ultimately being driven by law or by politics?

Either way, excluding proponents from the hearing is a serious concern. A one-sided record creates risks for both the administrative process and any future litigation.

The reality may lie somewhere between those two extremes.

What seems clear to me is that the cannabis industry cannot afford to rely exclusively on politics. Nor can it assume that legal arguments alone will carry the day. Long-term success requires both. The industry should continue supporting reform politically while also insisting on rigorous procedures and a complete administrative record. Only then can it help build a durable transition from prohibition to a stable and sustainable regulatory framework.

For more on marijuana rescheduling and the DEA rulemaking process, please check out these recent posts:

• Would Cannabis Rescheduling Help Businesses in Unified Markets? Washington Weighs In
• The Motion to Stay DEA’s Schedule III Rule: Strong Enough to Stick?
• Standing Is Everything: Three States Join the Medical Marijuana Rescheduling Fight
• Medical Marijuana Rescheduling Q&A: Cutting Through the Noise
• A Calculated Bet: DEA Registration is Open, and the Clock is Ticking
• Marijuana Rescheduling and Income Tax
• The U.S. Opens Its Medical Marijuana Market to Global Trade (For Now); Broader Marijuana Rescheduling on Deck

The post Law and Politics: Why Marijuana Rescheduling’s One-Sided Hearing Matters appeared first on Harris Sliwoski LLP.

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Would Cannabis Rescheduling Help Businesses in Unified Markets? Washington Weighs In

The Washington State Liquor and Cannabis Board (LCB) published an interesting bulletin this Tuesday, June 16^th. The bulletin finds that DEA’s final rule on medical marijuana rescheduling “does not appear to apply to Washington’s cannabis licensees, due to the statutory framework predominantly regulating recreational cannabis.”

The word “predominantly” is doing a lot of work in that sentence; and LCB qualified its findings, stating: “this may not be our final interpretation as information is evolving and the determination may not rest with the state.” That’s fair enough—I tend to agree with the final clause.

Washington may be the first state to publish an opinion of sorts on how rescheduling may affect its licensees. It’s a very important issue, which we began tracking prior to April 28^th, when DEA’s final rule took effect. As a refresher, the final rule orders that 1) state-legal, medical marijuana, and 2) FDA-approved marijuana drugs, both be moved from schedule I to schedule III of the federal Controlled Substances Act.

Whether rescheduling applies to businesses in states that operate through a unified, recreational and medical marijuana market, and make both adult-use and medical marijuana sales, is a crucial question. In most (all?) states with adult use cannabis programs, medical cannabis regulation and sales have been absorbed into the adult use regime.

If—and it’s a big if—the final rule survives litigation, operators who are entitled to leverage medical marijuana’s schedule III status will have significant advantages. These advantages include potential export rights and certain income tax relief, to start.

In a blog post titled “Marijuana and Income Tax”, published April 27^th, I hashed out the issue addressed in the bulletin:

In states with adult-use programs, the analysis could be complex. All states with adult-use marijuana programs also have medical marijuana programs. Most of these states have blended their programs to varying degrees. In some states, a plant may begin in adult-use CTS, grown by a non-medical licensee, but evolve into a medical marijuana item somewhere along the supply chain. The resulting product may or may not be more potent, will likely be packaged differently, and may or may not be taxed. Invariably, though, it is transferred or sold to a medical marijuana cardholder. It has undergone a definitional transformation, if not a physical one.

The licensees in these mixed supply chains may be adult-use licensees, with “endorsements” or “registrations” or other permissions to create or handle medical marijuana products. At the grow level, the distinction is virtually meaningless—a marijuana plant is just a marijuana plant, after all. But, are these hybrid operators “state licensees” within the meaning of the Order? They handle medical marijuana, but they also traffic in non-medical marijuana. They may or may not segregate inputs; they may or may not segregate outputs. You can see where I’m going with this.

Washington certainly saw where I (or probably this) was going, and published its bulletin. Before doing so, LCB advises that it spoke with “state agency partners as well as other states via the Cannabis Regulators Association (CANNRA) and the National Governors Association.” Assuming the LCB’s interlocutors came down with a similar analysis to the bulletin, there may be something of a consensus forming here.

If the final rule holds, and the LCB analysis is correct, we may see more states follow in the path of California, another unified market which has undertaken reforms to help its licensees take advantage of the final rule. It is likely that CANNRA and others are also working on this issue, although the topic was not squarely addressed in CANNRA’s April 27 overview of the final order.

We’ll continue to update on state action in response to the final rule, along with relevant litigation and other federal developments. Stay tuned! In the meantime, check out the following, related posts:

• The Motion to Stay DEA’s Schedule III Rule: Strong Enough to Stick?
• Standing Is Everything: Three States Join the Medical Marijuana Rescheduling Fight
• Medical Marijuana Rescheduling Q&A: Cutting Through the Noise
• A Calculated Bet: DEA Registration is Open, and the Clock is Ticking
• Marijuana Rescheduling and Income Tax
• The U.S. Opens Its Medical Marijuana Market to Global Trade (For Now); Broader Marijuana Rescheduling on Deck

The post Would Cannabis Rescheduling Help Businesses in Unified Markets? Washington Weighs In appeared first on Harris Sliwoski LLP.

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Jason Adelstone to Speak at Cannabis Law Institute 2026 on Cross-Border Investment and U.S. Rescheduling

Harris Sliwoski attorney Jason Adelstone will present at the International Cannabis Bar Association’s (INCBA) Cannabis Law Institute 2026, taking place June 17–18 in Chicago and hosted by Northwestern Pritzker School of Law. Jason will join Adi Rozenfeld of Herzog Fox &  Neeman and Sahar Ayinehsazian of A.Y. Strauss for a panel discussion titled:

Beyond Borders: Cross-Border Opportunities, International Capital Markets, and the U.S. Rescheduling Effect

As cannabis markets continue to mature around the world, businesses and investors are increasingly looking beyond their home jurisdictions for new opportunities. This panel will examine how countries are attracting investment, building financial infrastructure, and creating partnerships that support long-term industry growth.

The discussion will also focus on the potential impact of U.S. marijuana rescheduling. Panelists will explore what rescheduling could mean for banking access, institutional investment, cross-border transactions, global supply chains, and international dealmaking. They will also discuss where opportunities are emerging, what obstacles remain, and how businesses are positioning themselves for the next phase of the industry’s development.

Jason advises cannabis companies, investors, and entrepreneurs on a wide range of domestic and international business matters. His experience working with clients across multiple jurisdictions brings a practical perspective to discussions involving global investment, market expansion, and regulatory change.

The Cannabis Law Institute is one of the leading legal conferences in the cannabis industry, bringing together attorneys, regulators, executives, investors, and other stakeholders from around the world.

If you attend CLI 2026, be sure to stop by Jason’s session for an insightful discussion on international cannabis investment, cross-border business opportunities, and the potential effects of U.S. rescheduling.

The post Jason Adelstone to Speak at Cannabis Law Institute 2026 on Cross-Border Investment and U.S. Rescheduling appeared first on Harris Sliwoski LLP.

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The Motion to Stay DEA’s Schedule III Rule: Strong Enough to Stick?

With just over two weeks until DEA’s expedited processing deadline for state legal operators to apply for DEA registration, several petitioners litigating the legality of the DEA’s final rule have filed a motion to stay DEA’s final rule in the D.C. Circuit (“Motion”). The Motion was brought by the National Drug and Alcohol Screening Association, Inc. (“NDASA”) and MMJ International Holdings and its subsidiaries (“MMJ”). Surprisingly, Smart Approaches to Marijuana (“SAM”), Nebraska, and Indiana were not parties to this Motion. NDASA is a trade association for the drug and alcohol screening industry, and MMJ “are entities that have invested over $10 million and eight years developing pharmaceutical Schedule I cannabinoid therapeutics exclusively through the federal FDA and DEA regulatory pathways.”

I am not going to sugarcoat it: this Motion is good. It was written for its audience, the D.C. Circuit, and focuses primarily on a D.C. Circuit case from 1977 (the “NORML Case”), where the court held that 811(d)(1) could not be used by the Attorney General (“AG”) to unilaterally reschedule a substance without applying the processes set forth in 811(a) and (b) — a HHS medical and scientific determination and recommendation, plus notice and comment. I’ll discuss below why the NORML Case argument is not as strong as it may sound, but by framing their position around D.C. Circuit precedent, the petitioners may be forcing the court’s hand to hear the case on the merits.

As I recently wrote, if the court finds a plaintiff has standing and hears the case on the merits, it is more likely than not that the final rule is stayed and ultimately reversed. So, petitioners adding weight on why the court should hear the case matters. Telling the court that it already issued a decision that would invalidate the AG’s final rule — so how can it let this one stand — is compelling. The tricky part is getting past the standing threshold. Which I believe NDASA may accomplish.

Standing

In law, “standing“ is the legal capacity of a party to bring a lawsuit or participate in a case. To have standing, a plaintiff must demonstrate a direct, tangible stake in the outcome and show that they have suffered, or will suffer, a specific, concrete injury due to the action being challenged. The doctrine of standing ensures that someone cannot challenge a law simply because they don’t like it or the policy behind it. The law has to affect them.

Much of the Motion is devoted to showing why both NDASA and MMJ have standing. I was surprised at how weak MMJ’s argument is, but NDASA made a strong one.

NDASA’s arguments

NDASA argues that: (1) it will suffer unrecoverable losses in revenue because businesses will stop testing for marijuana; and (2) that NDASA’s members who test their employees for drugs will incur unrecoverable costs revamping their drug testing policies. NDASA’s Executive Director estimates that moving state legal medical marijuana to Schedule III will cost its 700 employer members over $700,000. That number sounds high until you do some basic math and realize it amounts to only $1,000 per employer. Now, the amount of the losses is not necessarily relevant, but I point it out to show how ridiculous this argument is.

Next, NDASA’s Executive Director states that the rescheduling order will put medical review officers out of business or force them to sell to larger companies. These are the officers who, after someone tests positive for a substance, review whether the substance was being taken legally (i.e., by prescription). The argument goes: state legal medical marijuana is not dispensed through a pharmacy, so a doctor’s name does not appear on the medical marijuana packaging (i.e., the bottle). Compounding the problem, not all state medical marijuana systems keep recommendation records or would allow patient records to be disclosed. As a result, it will become much harder for these officers to verify whether a positive THC test was due to illicit use or medical use. And this increased effort will increase costs.

Because of this increased cost, employers are likely to stop testing for THC altogether, which will put these officers out of business or force them to sell to larger companies. There is something inherently off about our system when we are discussing moving medical marijuana from Schedule I to III and a persuasive argument for preventing the move is that the testing business may be harmed. Despite how ridiculous these arguments may sound, they do show NDASA’s members would suffer a specific, concrete injury due to the action being challenged.

MMJ’s arguments

Prior to any motions being filed, I expected MMJ to join SAM in litigation. It made sense to me that a business waiting for DEA registration for over eight years and following FDA and DEA requirements the entire time, would be aggrieved. I assumed an argument showing a specific, concrete injury due to the rescheduling order would be simple for them. I guess I was wrong. The argument made by MMJ appears to put them in the same position they found themselves in in SAM v. Kennedy, where the Circuit Court dismissed the case for lack of standing. I am not disappointed, just surprised. I do feel bad for MMJ because they appear to have gone about everything properly. I would be upset too if I was in their shoes. But for their disappointment to trigger standing, they should have to show more direct harm than what was provided.

MMJ argues that the rescheduling order will inflict irreparable harm on MMJ because they have invested millions for nearly a decade “lawfully developing Schedule I cannabinoid treatments” and that moving competitors’ products into Schedule III will enable those competitors to flood the market and prevent MMJ from obtaining the first-mover advantage it was positioning itself to capture. Again, this argument seems to make sense — until you peel back only one layer. These markets already exist. DEA did not create them by issuing the rescheduling rule. So, MMJ’s grievance cannot be solved by a stay or even by a court overturning the rescheduling order. Further, none of these state legal products are pharmaceuticals, which is exclusively what MMJ manufactures.

Since MMJ can’t show that this rule harms them any differently than if the rule didn’t exist, I doubt they would survive a standing challenge on their own.

The merits argued in the Motions

In the Motions, petitioners make two main argument:

1. NORML v. DEA

As I mentioned above, the Motion focuses primarily on the NORML Case. There, the D.C. Circuit held that the AG could not use 811(d)(1) to undercut the medical and scientific review required by 811(a)–(b). The court held that 811(d)(1) allows the AG to set the minimum scheduling threshold for where a drug can be placed pursuant to international treaty obligations. So, if treaty obligations would allow a drug to be placed anywhere between Schedules 1 and 5, then 1 is the minimum. The CSA then requires the AG to seek a medical and scientific determination from HHS as to where the drug should be scheduled. HHS’ recommendation is the ceiling for where the drug can be placed.

There are two big problems with this argument

The first is that the D.C. Circuit’s reasoning was wrong. Courts are supposed to interpret and apply the law as it is written. Only when there are ambiguities are they to look at the legislative history and surrounding discussions to understand the intent of the legislators. Here, there are no ambiguities, and the court’s holding simply goes against the statute’s plain meaning: 811(d)(1) clearly says that “the Attorney General shall issue an order controlling such drug under the schedule he deems most appropriate to carry out” United States treaty obligations. The language assigns responsibility to the AG alone.

Further, 811(d)(1) goes on to state that such a decision is to be made without regard to “the procedures prescribed by subsections (a) and (b) of this section” — HHS review, and notice and comment. That is about as clear as you can get from Congress. 811(d)(1) was intended to grant the AG unilateral authority to reschedule a substance pursuant to treaty obligations without regard to HHS’ medical and scientific findings. And honestly that intent makes sense.

A brief history lesson

Marijuana was incorporated into the Single Convention and the Controlled Substances Act (“CSA”) to ensure that both the federal government and the states had to criminalize it. Harry Anslinger, the chief architect behind criminalizing marijuana under the Single Convention and incorporating that prohibition into the CSA, likely did not want to leave the criminality of cannabis up to an HHS medical and scientific review.

Anslinger had a single focus: to control and prohibit marijuana throughout the US, both state and federal. Anslinger knew that “under the taxing power and regulation of interstate commerce it would be almost hopeless to expect any kind of adequate control” without something more (this was pre-Wickard v. Filburn, for those legal junkies like me). That something more was international treaty obligations. Anslinger was also aware that medical and sociological reviews of marijuana were being conducted, including one commissioned by New York City Mayor Fiorello La Guardia. He wouldn’t have wanted to risk that marijuana’s scheduling placement would be decided on science alone. Treaty authority was the key to control.

Faced with the concern that several groups were lobbying states to liberalize control of marijuana, Anslinger determined that international treaties were the only way to stop them. “In the convention it is very specific that we must prevent its misuse. If the United States becomes a party to the 1961 convention, we will be able to use our treaty obligations to resist legalized use of marihuana” (at the time, no one could have predicted the state legal markets we have today or the gaping loopholes within the Single Convention allowing legal adult-use markets to exist).

Given this history, Anslinger likely would have preferred maintaining control under international treaty obligations, knowing that once cannabis was placed in the strict categories of the Single Convention, removing it from scheduling under the CSA would be almost impossible.

The D.C. Circuit simply ignored this history (as all legislatures have) when analyzing 811(d)(1) and simply legislated from the bench in issuing this decision.

Now back to the Motion at hand

The second problem is that we live in a different world than the one that existed in 1977. Back then, cannabis was placed in Schedules I and IV of the Single Convention, a placement signifying that cannabis had no therapeutic efficacy. In 2020, that changed. The Commission on Narcotic Drugs voted to remove “cannabis” (international treaties do not distinguish between marijuana and hemp and instead use the term “cannabis”) from Schedule IV, leaving it exclusively in Schedule I — a move that acknowledged its therapeutic potential. Two years earlier, in 2018, DEA placed Epidiolex (a pharmaceutical made from marijuana) into Schedule V before completely removing it from scheduling after the 2018 Farm Bill became law. Epidiolex at the time fell into the definition of marijuana, a schedule I drug, but somehow was able to fit into Schedule V without issue. Finally, in 2023, HHS provided DEA with a recommendation that included a robust accounting of state-conducted scientific studies showing the medical efficacy of marijuana. Each of these developments squarely addresses statements by the D.C. Circuit in the NORML Case justifying its abandonment of the plain language of 811(d)(1). To paraphrase an argument from petitioners in their Motion against DEA, a court can’t legislate by judicial fiat to create law it disagrees with.

Lastly, the petitioners make an argument that is difficult to square. They argue that under NORML Case precedent, “where a substance could be placed in more than one Schedule, the issue should be “fully litigated at a DEA rulemaking hearing.” The problem is that Duane Boise, MMJ’s CEO, argues in his declaration in support of the Motion (and pretty  much anywhere he can publish) that such administrative hearings are unconstitutional.

The problem with these counterarguments is that if the defendants is permitted to make them, then the industry has likely lost Schedule III. As I have mentioned many times before,  I believe that this Schedule III order will fall if the court allows the case to be argued on the merits.

2. DEA regulations

The secondary argument from MMJ and NDASA is that DEA is required to submit proposed regulatory changes for notice and comment before they become effective. This I believe is a legitimate argument, but I don’t agree with how far petitioners claim DEA went in proposing regulations.

In the final rule, the AG outlines certain regulatory changes that will take effect to ensure the US maintains compliance with the international drug treaties. While DEA will certainly have to account for finished products, these same rules governing flower and biomass are already implemented through 21 CFR 1318.04. That section covers, among other things, requirements for delivering crops to DEA, DEA’s purchase and possession of the crops, and import and export authorities. All that is required of DEA is to make minimal changes to these regulations to include state legal medical marijuana finished products. The AG, in a 2024 Proposed Rule to move marijuana into Schedule III, already addressed the legality of DEA issuing regulations to address minor changes needed to ensure US compliance with its international obligations. 21 USC 871(b) authorizes the AG to issue regulations “necessary and appropriate for the efficient execution of his functions under this subchapter;” and 822(b) allows the AG to regulate “the extent” of manufacture of a drug through registration.

Such authority can be used to address quota requirements for marijuana in Schedule III and to incorporate finished products into the current DEA framework. All minimal changes. The question therefore is not whether these regulatory changes were appropriate, but whether they should have gone through notice and comment. Again, though, if the AG has to make that argument, the industry has likely already lost.

The most frustrating part

The most frustrating part of all of this is that if the AG had taken a little more time to flesh out its plan, Schedule III would not be at risk. If the AG, instead of reinstating the hearing, had simply issued a final order moving “marijuana” into Schedule III, none of this would be an issue. Doing so would have gutted the petitioners’ arguments around NORML v. DEA, because HHS recommended Schedule III. Then, under a separate proposed rule, DEA could have proposed the current state legal medical marijuana framework. That would have insulated marijuana in Schedule III and focused the argument exclusively on the state legal market gaining access to DEA registration.

Even better — and legally justifying the registrations — DEA could have worked with FDA on establishing a program by which each legal medical marijuana market would submit an Investigational New Drug (“IND”) application to the FDA for their state programs. FDA would then have authority under 21 CFR 312.10, to waive application requirements if it found that doing so would not pose a significant and unreasonable risk to human subjects. This implies that some reasonable risks are tolerated.

While some people may pause here and ask how FDA could satisfy that standard, I would counter with studies showing people are drinking significantly less alcohol after consuming marijuana. Looking at the devastating effects of alcohol, including the 488 people who die each day from excessive alcohol use, this substitution sure seems like a public health benefit to me. As I have been talking about since last year and will be presented in Project Four 2029 when it goes live later this year, by coordinating DEA and FDA under an IND, it would have legitimized DEA’s acknowledgement of state legal medical marijuana within the FDA drug framework and further insulated the rule from judicial challenge. There are numerous statutory and regulatory pathways for conducting research. And each of those pathways can lead to different legal commercial markets (i.e. establishing scientific pilot programs for medical, or adult-use, or social equity, or intoxicating hemp beverages).

What DEA should have done is first ensured that marijuana remained in schedule III by simply moving the substance under the initial rescheduling proposed rule. Then DEA and FDA should have worked together to implement scientific medical pilot program under INDs aimed at researching the state legal medical market, patient results, and the effects of legalization on society as a whole.

Whether a Stay Will Be Issued

The Motion will not be decided unless the petitioners can show standing. As discussed above, NDASA has the best shot. If the court determines that NDASA (or the state petitioners who were not included in this Motion) have standing, then, in determining whether a stay should be issued the Court considers

“four factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. . . . The first two factors are the most critical and may be balanced against each other, thus a ‘stay may be granted with either a high probability of success and some injury, or vice versa”.

NDASA argues, quite successfully, that irreparable harm will come to them if the stay is not issued, and the DOJ will incur any harm if the stay is issued. The argument is that the government has lived with marijuana in Schedule I for decades — what’s a few more months?

Adding to the persuasiveness of this argument is a declaration from Bertha K. Madras, a Ph.D. from Harvard. Dr. Madras provides a narrative for the court about how dangerous marijuana is to our youth, pregnant women, and society as a whole. She cherry-picks data, some of which is exaggerated (for example, her use of a survey stating that 69% of Colorado dispensaries recommended marijuana to pregnant women. Dr. Madras cites a 2018 study, and 81 Fed. Reg. at 53775 (Aug. 12, 2016), which says nothing of the sort). Dr. Madras’ argument, like so many others, rings hollow when faced with the fact that we live in a country where alcohol use kills hundreds each day in the US, but binge drinking is celebrated. No one is saying that marijuana is completely safe and poses no harms to society. What is being said is that medical marijuana belongs in at least Schedule III. It has medical efficacy and harms that are much less than those of substances in Schedules I and II. That is all. Unfortunately, Dr. Madras’ Harvard pedigree and declaration will likely be persuasive to a court that has historically sided against subject agency overreach.

Conclusion

While there are some problems with this Motion, the arguments appear strong enough to both grant NDASA standing and to justify the court ordering a stay on the Schedule III final rule. Further, this Motion does not even address what I believe is the petitioners’ strongest argument — that 811(d)(1) grants the AG authority to reschedule a “drug,” not state legal programs. If the government is unable to persuade the court that petitioners lack standing, I fear that the industry celebration will be short-lived.

For more on DEA’s Rescheduling please check out these recent posts:

1. Standing Is Everything: Three States Join the Medical Marijuana Rescheduling Fight
2. Medical Marijuana Rescheduling Q&A: Cutting Through the Noise
3. A Calculated Bet: DEA Registration is Open, and the Clock is Ticking
4. Marijuana Rescheduling and Income Tax
5. The U.S. Opens Its Medical Marijuana Market to Global Trade (For Now); Broader Marijuana Rescheduling on Deck

The post The Motion to Stay DEA’s Schedule III Rule: Strong Enough to Stick? appeared first on Harris Sliwoski LLP.

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Harris Sliwoski Earns Chambers USA Cannabis Law Recognition for 2026

Chambers and Partners, the London-based legal research and rankings organization, has once again recognized Harris Sliwoski among the leading cannabis law firms in the United States. In its 2026 rankings, Chambers ranked Harris Sliwoski in Band 4 nationally and recognized two of the firm’s cannabis attorneys for their industry-leading work: Vince Sliwoski in Band 3 and Christian Sederberg in Band 1.

Chambers and Partners evaluates law firms and attorneys based on extensive independent research and client feedback, considering factors such as:

• Technical legal ability
• Professional conduct
• Client service
• Commercial awareness
• Diligence
• Commitment

View the Harris Sliwoski ranking HERE.

View Vince Sliwoski’s ranking HERE.

View Christian Sederberg’s ranking HERE.

Denver-based attorney Christian Sederberg received Chambers’ highest individual cannabis law ranking, Band 1. Christian is widely recognized as one of the pioneers of the regulated cannabis industry and has spent more than 15 years helping businesses, investors, and entrepreneurs navigate the rapidly evolving cannabis marketplace. He regularly advises clients on licensing, regulatory compliance, corporate transactions, and strategic growth initiatives across the cannabis sector.

Portland-based Vince Sliwoski was again recognized for his work in Cannabis Law, earning a Band 3 ranking. Vince is widely regarded as one of the country’s leading cannabis business attorneys and has also spent 15 years helping cannabis businesses navigate complex regulatory and business challenges. taught one of the nation’s first law school courses dedicated to cannabis law and policy, and runs the award-winning Canna Law Blog.

For more information about Harris Sliwoski’s Cannabis Law practice, please click HERE. To stay informed on cannabis industry legislation, regulation, and compliance, subscribe to our Canna Law Blog.

The post Harris Sliwoski Earns Chambers USA Cannabis Law Recognition for 2026 appeared first on Harris Sliwoski LLP.

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Minnesota’s New Cannabis and Hemp Laws

Minnesota continues to refine its cannabis framework with an Omnibus Cannabis Bill affecting licensed cannabis (marijuana) businesses, hemp operators and medical patients. The new package was signed by Governor Waltz last week. Some of the changes are effective immediately, while others take effect January 1, 2027.

It’s common for state cannabis programs to evolve through annual legislation and rulemaking. The changes are often dramatic in the handful of years following program launch. Here, the package was described as “maintenance” by State Rep. Jessican Hanson, but we view it as very impactful. Minnesota’s new cannabis legislation concerns access, licensing, distribution, and product standards in ways that should matter to both hemp and cannabis operators.

If you’d like to review the new legislation, you can find the Omnibus Cannabis Bill here. Note: it’s a lot of reading! New text is underlined, and you’ll find removed sections of existing laws shown  in strike-through.

If you’d rather skip that painful reading, here is a high-level summary, broken into bullet points where possible for readability:

Unified supply chain

The new law eliminates the requirement to maintain separate medical and adult-use supply chains for licensees in CTS. Businesses with a medical endorsement may now operate under a single cultivation, manufacturing, and inventory system, including unified tracking within Metrc. This change is intended to reduce operational inefficiencies while preserving patient access.

Every state that has rolled out an adult-use program following a medical marijuana program has merged supply chains to some extent. Here, Minnesota follows suit.

Medical market safeguards

These safeguards tie into the program “merger” to some extent. To ensure continuity of care, the law imposes new obligations on medical-endorsed businesses. These include:

• Employment of a licensed pharmacist or medical cannabis consultant
• Priority service measures for patients (e.g., dedicated lines, curbside pickup, advance ordering)
• Mandatory stocking of products identified as high medical need
• A 24-hour fulfillment expectation for patient requests across the market

Note: certain medical products are exempt from adult-use potency limits, and hemp-derived cannabinoids are permitted in medical formulations.

New macrobusiness license (Effective Jan. 1, 2027)

The existing medical cannabis combination business license will sunset. In its place, the legislation rolls out a “macrobusiness” license, featuring:

• Up to 38,000 square feet of indoor canopy (reduced dramatically, from 90,000)
• Up to eight retail locations, with location requirements tied to high-need areas
• A statewide cap of eight licenses until January 1, 2030

Existing medical licensees must convert to microbusiness licensure by January 1, 2027. Incremental canopy increases are available over time for compliant operators. The law also introduces a petition process for smaller businesses seeking to move into higher license tiers.

Incentives for licensees with medical endorsements

Operators with medical cannabis endorsements receive meaningful benefits:

• Expanded cultivation limits for micro, mezzo, and cultivation licensees
• Additional retail locations in designated high-need areas
• Authority to deliver directly to patients and caregivers
• Expanded transport rights for certain license types

In exchange, a portion of increased production must be supplied to other medical-endorsed businesses.

Hemp industry transition

In advance of the federal re-definition of “hemp” effective November 12, 2026, the law allows dual licensure for hemp and cannabis businesses, enabling hemp operators to transition into the regulated cannabis market. It also authorizes new “ratio hemp-infused cannabis products” within defined cannabinoid limits, as follows:

• containing no more than 100 milligrams of certain cannabinoids (CBD, CBG, CBN, or CBC) per serving.
• containing a maximum of 10 milligrams of THC per serving.
• containing 200 milligrams of THC per package for edibles (or two servings per container for beverages).

Reporting and oversight changes

The Office of Cannabis Management (OCM) will transition to a streamlined, bifurcated reporting structure consisting of an annual market analysis, and a consolidated legislative report due annually, by January 15.

The revised framework attempts to prioritize public health, safety, and market data, while reducing prior reporting burdens.

Additional regulatory updates

Again, the law is expansive and contains myriad changes. Here are some of additional highlights on our review:

• Local governments must adopt reasonable cannabis regulations (which is great!) and apply population-based licensing thresholds using upward rounding.
• OCM gains expanded authority to deny or revoke licenses and enforce compliance.
• Preliminary license approvals now include mandatory extension rights.
• Social equity applicants may hold up to four licenses with capped ownership stakes.
• Compliant cannabis and hemp activities are expressly protected under state law.

Timeline and next steps

Most provisions of the new law take effect soon—on August 1, 2026. The macrobusiness framework becomes effective January 1, 2027, as noted above.

All Minnesota cannabis businesses—particularly those with or considering medical endorsements—should evaluate operational, licensing, and compliance impacts now. Hemp operators face a more immediate decision window given the November 2026 federal deadline, as we’ve repeatedly explained in our hemp-related blog posts.

Contact us if you have any questions on what these changes mean for your Minnesota cannabis business!

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Star signs and cannabis strains: June 2026 horoscopes

Your June 2026 horoscopes brings a powerful mix of growth, reflection, and fresh opportunities.

The post Star signs and cannabis strains: June 2026 horoscopes appeared first on Leafly.

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