Advocacy organizations on both sides of the marijuana legalization debate have filed notices of intent to participate in a hearing on broad federal rescheduling of cannabis that the Drug Enforcement Administration (DEA) is set to begin next month.
Acting Attorney General Todd Blanche last month issued an order that immediately reclassified state-licensed medical cannabis, as well as marijuana products approved by the Food and Drug Administration (FDA) from Schedule I of the Controlled Substances Act (CSA) to Schedule III.
Under a separate order the acting attorning general signed, DEA will hold a hearing on the issue of more comprehensively moving marijuana to Schedule III, starting on June 29.
The National Organization for the Reform of Marijuana Laws (NORML) announced on Tuesday that it has filed notice of intention to participate in the proceedings.
“Marijuana cannot lawfully remain in Schedule I,” Joseph A. Bondy, chair of NORML’s Board of Directors and counsel to the group, said in a press release. “But Schedule III is not the end of the road. It is, at most, an interim correction. It does not resolve the federal government’s continued failure to recognize adult cannabis consumers who are acting lawfully under state law.”
The group argued in its filing that the hearing record will be incomplete without included the perspective of adult marijuana consumers that the group represents.
NORML doesn’t oppose moving cannabis to Schedule III, under which cannabis would remain a medicalized substance, but it argues that a more appropriate reform would be to remove cannabis from the CSA altogether—a process called descheduling.
“Adult cannabis consumers do not become patients because federal law lacks a better category for them,” Bondy said. “They are not abusing medicine. They are participating in state-regulated adult-use systems enacted by voters and legislatures.”
“NORML is not appearing as an industry-tax-relief organization, and it is not appearing as a medical-only advocacy group,” he said. “NORML is appearing because cannabis consumers are directly affected by federal scheduling, and no other likely participant represents them as consumers.”
Meanwhile, the prohibitionist organization Smart Approaches to Marijuana also wants to participate in next month’s DEA hearing and has filed intent to do so.
“This fight is not over, and we will not sit on the sidelines while the federal government hands Big Marijuana its biggest political win in history,” Kevin A. Sabet, the group’s president and CEO said. “Rescheduling marijuana to Schedule III has no scientific basis and would hand the industry billions of dollars in rewards for targeting children.”
Notices of intent to participate in the hearing, which is set to conclude no later than July 15 under Blanche’s order, needed to be filed by Sunday in order to be considered. Such requests were required to:
- (1) state with particularity the interest of the person in the proceeding;
- (2) state with particularity the objections or issues concerning which the person desires to be heard; and
- (3) state briefly the position of the person regarding the objections or issues.
“The purpose of the hearing is to ‘receiv[e] factual evidence and expert opinion regarding’ whether marijuana should be transferred to schedule III of the list of controlled substances,” Blanche’s notice said.
The acting attorney general will select witnesses who will be invited to participate, as well as an administrative law judge (ALJ) to oversee the proceedings.
“The ALJ’s authorities include the power to hold conferences to simplify or determine the issues in the hearing or to consider other matters that may aid in the expeditious disposition of the hearing; require parties to state their position in writing; sign and issue subpoenas to compel the production of documents and materials to the extent necessary to conduct the hearing; examine witnesses and direct witnesses to testify; receive, rule on, exclude, or limit evidence; rule on procedural items; and take any action permitted by the presiding officer under DEA’s hearing procedures and the” Administrative Procedures Act, Blanche wrote.
A prior hearing process on the marijuana rescheduling process that was initiated by the Biden administration stalled last year amid litigation over alleged improper communications and witness selection.
Meanwhile, the already-enacted rescheduling of state-licensed medical cannabis is already having broad impacts.
The Congressional Research Service published a report on the current cannabis rescheduling move explaining that certified patients who possess medical marijuana from state-licensed dispensaries now have certain protections under Schedule III. “The order appears to authorize end users to possess marijuana for medical use without a CSA-compliant prescription,” it says.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has posted a draft update to a gun purchase form to acknowledge the federally legal status of medical marijuana under rescheduling. The revised section in question notably says that only “use or possession of marijuana for recreational purposes” is federally prohibited, leaving out the prior form’s mention of medical cannabis.
The U.S. Department of the Treasury and Internal Revenue Service (IRS) said they plan to issue new tax guidance for the marijuana industry following rescheduling. The reform will benefit state-licensed marijuana businesses by allowing them to take federal tax deductions they’re currently barred from under an IRS code known as 280E that doesn’t apply to Schedule III substances.
Even DEA, which has long opposed cannabis legalization and was accused of stalling the rescheduling process initiative by the Biden administration, has launched a registration process for state-legal marijuana businesses to take advantage of federal benefits that come with the reform.
The Department of Transportation, on the other hand, issued guidance saying that use of state-legal medical cannabis is still no excuse for a positive drug test by truck drivers, pilots and other safety-sensitive workers.
