The ongoing legal and procedural controversies surrounding the Biden administration's proposal to reschedule marijuana from Schedule I to Schedule III under the Controlled Substances Act (CSA) have escalated, with key motions challenging the role and actions of the Drug Enforcement Administration (DEA).
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Key Allegations and Motions:
1. DEA’s “Improper” Role as Proponent
Background: The Department of Justice (DOJ) issued the proposed rule to reschedule marijuana, which was signed by Attorney General Merrick Garland, not DEA Administrator Anne Milgram—a break from precedent.
Challenge: A motion filed by Hemp for Victory and Village Farms International argues that DEA's failure to follow statutory procedures and its alleged opposition to the rescheduling proposal compromise its ability to act as the proponent of the rule.
Proposed Remedy: The motion suggests the DOJ or another neutral party replace DEA as the rule's proponent to ensure fairness in the hearing process.
2. Allegations of Bias and Ex Parte Communications
Private Contacts with Prohibitionists: The motion cites public comments and social media posts from Kevin Sabet, president of the prohibitionist group Smart Approaches to Marijuana (SAM), who claimed private discussions with DEA officials. SAM has publicly opposed the proposed rescheduling and allegedly used information from these discussions to strategize its opposition.
Transparency Concerns: The filing criticizes DEA for not disclosing details of how the 25 designated witnesses for the hearing were chosen, raising concerns about arbitrary or biased decisions
Requested Action: The motion calls for full disclosure of all communications between DEA and prohibitionist groups and their inclusion in the administrative record.
3. Procedural Delays and Legal Challenges
Hearing Delays: DEA Administrative Law Judge (ALJ) John Mulrooney has pushed back the timeline for the rescheduling hearing, initially set for December, citing insufficient information on witness backgrounds and positions. The merits of the case will now likely not be addressed until 2025.
Lawsuit for Stay of Proceedings: David Heldreth, a cannabis researcher, has filed a federal lawsuit seeking to halt the rescheduling process, alleging "improper blocking" of witnesses and urging a delay until a potential Trump administration could review the proposal.
Veterans’ Petition Rejected: A motion by a veterans’ advocacy group to participate in the hearing was denied, sparking criticism that the process excludes voices most affected by potential policy changes.
Broader Implications and Political Context
The rescheduling proposal has sparked polarized reactions across political, legal, and advocacy circles:
Support for Reform:
The Biden administration initiated the rescheduling review to address barriers to cannabis research and provide tax relief for state-licensed cannabis businesses by exempting them from IRS Section 280E restrictions.
Senate Majority Leader Chuck Schumer and other Democratic lawmakers have urged the DEA to expedite the rescheduling process.
Criticism of Process:
Republican lawmakers, such as Sen. Bill Cassidy and Rep. Doug LaMalfa, have questioned the transparency and motivations behind the proposal, labeling it politically driven.
Prohibitionist groups, including SAM, argue that rescheduling would undermine public health and safety and have rallied against the proposal.
Limitations of Rescheduling:
Moving cannabis to Schedule III would not federally legalize it, leaving issues like state-federal conflicts and access disparities unresolved.
What’s Next?
The unfolding legal challenges and procedural disputes could significantly delay the rescheduling process.
As the hearing timeline extends into 2025, a potential change in administration could reshape the trajectory of cannabis policy reform.
The final decision, whether to reschedule marijuana or maintain its current classification, could have profound implications for the $32 billion cannabis industry, federal research, and public health policies.
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