The Latest on Marijuana Rescheduling: What You Need to Know

BIDEN GETS THE JOINT ROLLING

On October 6, 2022, President Joe Biden requested that the Secretary of Health and Human Services (HHS) and the United States Attorney General launch scientific reviews to determine if marijuana should be rescheduled. The United States Department of Health & Human Services (HHS), under the tutelage of Assistant Secretary Rachel Levine, recommended that marijuana be rescheduled from a Schedule I to Schedule III controlled substance. Schedule I drugs have “no currently accepted medical use” and a “high potential for abuse” and are therefore federally illegal. Moving marijuana to a Schedule III status would be a long-overdue acknowledgment by the federal government that marijuana “has a currently accepted medical use” and a “moderate to low potential” for physical and psychological dependence. Medications currently categorized as Schedule III include ketamine, anabolic steroids, testosterone, and Tylenol with Codeine.

Schedule III drugs are considered less dangerous than Schedule II drugs. Schedule II medications “have a high potential for abuse, with use potentially leading to severe psychological or physical dependence.” Examples include OxyContin, fentanyl, Vicodin, cocaine, and most opioids. A Schedule III classification is currently enjoyed by Marinol, an FDA-approved medication made from synthetic (lab-created) THC. The proposed rescheduling admits that marijuana not only can treat pain and illness but that it is a safer treatment than commonly prescribed opioids like Percocet and Vicodin.

If successful, rescheduling would effectively federally legalize medical marijuana programs. Note the “medical” qualifier. Even if marijuana is rescheduled, recreational marijuana use would remain federally illegal. For adult use to be deemed legal, marijuana would need to be descheduled or removed from the list of controlled substances. At present, 38 states plus D.C. allow medical marijuana to be sold at state-licensed and approved dispensaries which they regulate and tax.

Rescheduling marijuana as a Schedule III would obviate the need for the Rohrabacher Amendment, which has allowed states to run medical marijuana programs despite the federal illegality of the marijuana sold. The Rohrabacher Amendment is a rider attached to every federal appropriations bill since 2015. It contains language that prevents the U.S. Attorney General from using federal funds to interfere with or prosecute state-run dispensary programs.

The removal of the shroud of illegality would allow cannabis businesses normalized access to the banking and medical systems. It would become possible for marijuana to be covered by health and workers’ compensation insurance. This increases access and reduces out-of-pocket costs for patients who would benefit from but cannot afford the cost of medical marijuana, one of the greatest barriers to treatment. This, in turn, creates a positive economic feedback loop of increased demand coupled with increased access and supply. Health insurers could also negotiate directly with dispensaries and set standard reimbursement rates to keep prices under control or name preferred dispensaries.

Based on the HHS recommendation that marijuana be rescheduled, in May of 2024, U.S. Attorney General Merrick Garland issued a Notice of Proposed Rule to “consider” reclassifying marijuana as a Schedule III controlled substance. (Emphasis added). Note the language choice. Consideration does not guarantee reclassification. After considering the issue, the DEA and Attorney General could still opt to leave the status quo in place and not reschedule cannabis.

Public comments were received, and a preliminary hearing was held by the DEA on December 2, 2024. A hearing for witness testimony was scheduled for January 21, 2025, which has since been canceled. It was anticipated that approximately 20 witnesses from various interest groups and governmental agencies would testify both for and against the proposed rescheduling rule.

HAZE AND CLOUDS APPEAR: ALLEGATIONS OF DEA MISCONDUCT

Live testimony for and against rescheduling was anticipated to commence on January 21, 2025. The Administrative Law Judge (ALJ) overseeing the matter, John Mulrooney, canceled this hearing on January 13, 2025. The cancellation of the hearing followed a motion filed by Hemp for Victory and Village Farms to remove the DEA from the rescheduling process. They argued that the DEA should be removed from the decision-making process as various DEA officials were alleged to have participated in ex parte conversations and conversations with witnesses scheduled to testify against rescheduling. If true, this would constitute improper conduct jeopardizing the ability of the DEA to fairly adjudicate if marijuana should be rescheduled.

The ALJ declined to altogether remove the DEA from the rescheduling process (his written decision suggests he did not have the authority to do so). However, ALJ Mulrooney did not hold back or mince words when discussing the alleged closed-door DEA meetings with potential witnesses, calling it “disturbing and embarrassing” and noting that the allegations, if true, suggest a “grotesque lack of understanding and poor judgment from high-level officials at a major federal agency.”

ALJ Mulrooney also pointed out that President-Elect Trump will be nominating a new DEA head imminently, which will affect who will decide the ultimate issue of whether to reschedule. In addition, the judge gave the petitioners leave to file a requested interlocutory appeal and stayed the hearings on rescheduling for at least 90 days. In 90 days, a status hearing will be held.

While the delay in the rescheduling hearings is disappointing, it is understandable given the alleged misconduct by DEA officials, who were set to be replaced shortly by incoming President Trump, regardless of the malfeasance.

ENTER DONALD TRUMP AND A NEW CAST OF CHARACTERS

Donald Trump will be president when the DEA finally holds substantive hearings on rescheduling marijuana. When that happens, Merrick Garland will no longer be the United States Attorney General (AG). The current AG nominee is Pam Bondi, a former Florida attorney general. Trump’s initial selection was former Florida House Representative Matt Gaetz, who withdrew his name from consideration.

A new DEA Administrator will also be nominated by Trump. In late 2024, Trump nominated Sheriff Chad Chronister to be his DEA Administrator. However, Chronister withdrew his name from consideration. A replacement nominee has yet to be identified.

President Trump now has the historic opportunity to be remembered and revered as the president who “legalized” medical marijuana—the hero who cleared the dark “federally illegal” clouds that lurk over state-run medical cannabis programs. President Trump’s personality suggests that he would welcome basking in the glow of this magic moment, as do comments he made during his 2024 presidential campaign in a September 8, 2024, Truth Social post:

President Trump, above, effectively signaled his support for medical marijuana by commenting on the need for access for adults to safe and tested “product,” aka “medical marijuana.” In that post, Trump further represented that, as a Florida voter, he planned to vote in favor of Amendment 3. This was a 2024 ballot initiative that sought to legalize adult-use marijuana in Florida. Trump was the first Republican presidential candidate to express support for legal adult-use marijuana. He was joined by nearly 6 million Florida voters in voting in favor of legal marijuana in the state. Amendment 3 ultimately gained the support of 55.9% of Floridians, a majority which fell short of the 60% threshold required to enact the law.

Trump’s initial selection of Matt Gaetz as his Attorney General nominee is another telling sign of his support for marijuana rescheduling and legalization. Gaetz’s character is fairly debated, but when it comes to his desire to enact marijuana policy reforms, Gaetz’s record cannot be questioned. He supported and voted for the failed MORE Act to federally legalize marijuana in both 2020 and 2022, one of just three Republican representatives to do so. After Matt Gaetz’s nomination went up in smoke, Trump nominated Pam Bondi to head the Attorney General’s office. This nomination is pending.

Realistically, substantive hearings on rescheduling will not commence until the spring or summer, at best. Stay tuned to see what happens when the smoke clears.