The U.S. Drug Enforcement Administration (DEA) is set to hold hearings starting December 2 on the rescheduling of marijuana, with a notable potential shift in the list of participants as the process unfolds. Here's an overview of the key developments and implications:
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Background on DEA Rescheduling Proposal
The DEA has proposed rescheduling marijuana from Schedule 1 to Schedule 3 under the Controlled Substances Act (CSA).
Schedule 1 drugs are considered to have no accepted medical use and a high potential for abuse.
Schedule 3 drugs are those with accepted medical use but a lower potential for abuse compared to Schedules 1 and 2.
Rescheduling would alleviate certain federal restrictions, including tax burdens under Section 280E, which currently apply to marijuana businesses.
Veterans Action Council (VAC) Petition
VAC’s Position: The veterans advocacy group argues for marijuana to be rescheduled to Schedule 5, or descheduled entirely.
Reasoning: Schedule 5 would remove the burdens of Section 280E while aligning with marijuana’s low risk compared to other substances. Descheduling would allow states full autonomy over cannabis regulation.
VAC also suggests that Schedule 3 is inappropriate for a widely regulated $32 billion industry since Schedule 3 substances require FDA approval and prescriptions.
Denied Participation:
The VAC petitioned to join the hearings but was not included in the initial list of 25 designated participants released by DEA Administrator Anne Milgram on October 31.
U.S. Chief Administrative Law Judge John Mulrooney II rejected the petition, citing the VAC’s exclusion from the DEA’s approved list.
Judge's Order and Possible Appeal
While Judge Mulrooney rejected the VAC’s request, a footnote in the ruling indicates the possibility for additional participants to be added later.
Mulrooney referenced case law suggesting that decisions on participation are not final until the case's ultimate disposition.
VAC’s Michael Krawitz interpreted this as a positive sign and is considering appealing the decision.
Current and Dropped Participants
Confirmed Participants:
As of now, the Dec. 2 hearing is set to evaluate the standing of the designated participants to continue in future hearings, expected to extend into early 2025.
To qualify, participants must demonstrate they are "adversely affected" by the rescheduling proposal.
Withdrawals:
The American College of Occupational and Environmental Medicine was removed for failing to meet a filing deadline.
Dr. Chad Kollas, an oncologist invited to represent the American Academy of Hospice and Palliative Medicine, declined to participate.
Five participants share the same attorney, which may consolidate their positions during the hearings.
Implications of Rescheduling
Benefits of Schedule 3:
Businesses would avoid punitive taxes under Section 280E, improving profitability and access to financial services.
Rescheduling could enable broader research into marijuana's medical benefits.
Criticisms of Schedule 3:
Critics argue it doesn't address the broader need for federal legalization or acknowledge marijuana’s widespread recreational use.
Schedule 3 may not align with state-legal markets or public perception of cannabis as a low-risk substance.
Schedule 5 or Descheduling:
Descheduling would remove federal oversight entirely, leaving regulation to the states
Advocates argue that this approach aligns better with the realities of the industry and public sentiment.
Looking Ahead
The Dec. 2 hearing will set the tone for future proceedings, with critical discussions likely to occur in January and February 2025.
The VAC’s potential appeal and other challenges could shape the scope of participants and the overall rescheduling process.
Rescheduling remains a pivotal issue for balancing federal policy with the realities of state legalization and industry growth.
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