Cannabis Industry Group Seeks Clarity in DEA Rescheduling Hearings
The National Cannabis Industry Association (NCIA), one of the country’s foremost marijuana industry organizations, has requested clarification from a Drug Enforcement Administration (DEA) administrative law judge on its ability to cross-examine the agency during upcoming hearings on the Biden administration’s cannabis rescheduling proposal.
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Key Questions Raised by NCIA
NCIA’s request to DEA Administrative Law Judge (ALJ) John Mulrooney comes amid unresolved concerns about DEA’s stance on reclassifying marijuana from Schedule I to Schedule III under the Controlled Substances Act (CSA). Specifically, NCIA seeks clarity on whether its dual status as an “interested person” and a “designated participant” (DP) allows it to cross-examine both opponents of the proposed rule and DEA representatives.
Judge Mulrooney previously outlined that government representatives and pro-rescheduling participants may cross-examine anti-rescheduling parties and vice versa. However, NCIA’s unique position as a representative of a large and diverse cannabis industry membership adds complexity to its role in the hearings.
In addition, NCIA has asked the judge to allow it to present two witnesses instead of the one-witness limit set for participants. The group argues that its distinct position would benefit from testimony by Jennifer Mitchell, a University of California, San Francisco neurology professor and research leader, who brings decades of relevant expertise to the table. Mitchell has stated in an affidavit that she is not aware of any significant research contradicting the U.S. Department of Health and Human Services’ (HHS) recommendation to reschedule marijuana.
The Debate Over Testimony and Witnesses
NCIA emphasized the importance of its witnesses’ testimony, noting that its status as an “interested person” merits special consideration. While the judge has imposed strict time limits to ensure efficiency, NCIA has proposed limiting its witnesses to 60 minutes each to accommodate these constraints.
The organization also requested that witnesses be allowed to testify via video teleconference and that its leadership be permitted to attend key hearing dates.
Meanwhile, DEA has submitted its own materials ahead of the “homework” deadline and is seeking subpoenas to compel testimony from Food and Drug Administration (FDA) officials. Despite Judge Mulrooney’s ruling that public comments submitted during the rulemaking process do not qualify as evidence, DEA has indicated its intention to introduce tens of thousands of such comments.
Broader Controversies Surrounding Rescheduling
The rescheduling hearings, set to begin in January 2025, have drawn significant attention and controversy. Moving marijuana to Schedule III would not federally legalize the substance but could have substantial implications. Rescheduling would allow cannabis businesses to take federal tax deductions under IRS Code 280E and reduce certain research barriers. However, skepticism persists regarding DEA’s neutrality in the process, given its history and recent procedural disputes.
Challenges to DEA’s Process
Several groups, including the coalition Doctors for Drug Policy Reform (D4DPR), have raised concerns about the agency’s handling of the hearings. D4DPR and the Veterans Action Council (VAC) have both filed petitions requesting federal courts to intervene, citing alleged irregularities in witness selection and procedural fairness.
Additionally, attorney Matt Zorn has filed a lawsuit against DEA for allegedly withholding records of communications between the agency and the prohibitionist group Smart Approaches to Marijuana (SAM). Judge Mulrooney, while addressing these concerns, questioned the feasibility of uncovering evidence of any ex parte communications.
Political and Legislative Implications
The rescheduling process has also prompted mixed reactions from lawmakers. Democratic leaders, including Senate Majority Leader Chuck Schumer, have urged DEA and the Department of Justice (DOJ) to expedite the rescheduling rule. Conversely, several Republican lawmakers, including Sen. Bill Cassidy (R-LA) and Rep. Doug LaMalfa (R-CA), have criticized the proposal, arguing that it is politically motivated and lacks scientific rigor.
Former President Donald Trump has voiced support for cannabis reform, and his administration’s DEA nominee, Sheriff Chad Chronister, has previously backed cannabis decriminalization. This bipartisan interest adds another layer of complexity to the debate.
Looking Ahead
While rescheduling cannabis to Schedule III represents a significant step forward for cannabis reform, it stops short of full federal legalization. The outcome of these hearings could reshape the cannabis industry by addressing issues like tax deductions and research opportunities. However, concerns about procedural fairness, government transparency, and political motivations underscore the contentious nature of the rescheduling debate.
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