The Biden administration’s two-year cannabis rescheduling process will largely come down to an administrative law judge hearing scheduled for Dec. 2. Two months out from this lame-duck hearing process, a pair of top Democrats in the U.S. House are urging the Drug Enforcement Administration (DEA) to move forward without delay.
New York Rep. Jerry Nadler, the ranking member of the House Judiciary Committee, and New Jersey Rep. Frank Pallone Jr., the ranking member of the House Energy and Commerce Committee, sent a letter Oct. 1 encouraging Attorney General Merrick Garland and DEA Administrator Anne Milgram to take “swift action” to finalize a proposed rule to transfer cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA).
“We urge you to swiftly complete this process and transfer marijuana to schedule III,” the congressmen wrote. “We also call on the Department of Justice and HHS to continue to assess whether Schedule IV, Schedule V, or descheduling may be appropriate.”
Nadler, in particular, is the primary sponsor of the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, legislation intends to legalize cannabis at the federal level through decontrolling and decriminalizing the plant, as well as provide expungements for certain cannabis offenses and create reinvestment opportunities for those adversely impacted by prohibition. The bill has 94 co-sponsors in the House, all of whom are Democrats.
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The Department of Justice (DOJ), which Garland heads, issued the proposed rule that was published in the Federal Register on May 21 and drew more than 43,500 responses during a 60-day public comment period that ended July 22.
The proposal came after President Joe Biden directed his cabinet in October 2022 to review how cannabis is scheduled and after the U.S. Department of Health and Human Services (HHS) recommended to the DEA that cannabis be reclassified to Schedule III after conducting a scientific and medical evaluation that found the plant has currently accepted medical use in the U.S. and therefore should not be listed alongside heroin, LSD and ecstasy in Schedule I.
“Ultimately, HHS determined that marijuana has less potential for abuse than other drugs or substances in schedules I and II, that marijuana has an accepted medical use in treatment in the United States, and that abuse of marijuana may lead to moderate or low physical dependence or high psychological dependence,” Nadler and Pallone wrote. “These findings correspond to placing marijuana in schedule III of the CSA.”
Despite the HHS recommendation and DOJ’s ensuing proposal, the “DEA has not yet made a determination as to its views of the appropriate schedule for marijuana,” according to the May 21 Federal Register.
The HHS’s scientific and medical determinations—which are made after the Food and Drug Administration (FDA) considers eight determinative factors of a substance’s control—are binding for the DEA until the notice of proposed rulemaking is issued. In other words, now that the proposed rule went through the public comment period, the DEA holds authority for the final rule.
“[The] DEA believes that factual evidence (including scientific data) and expert opinions, including additional data regarding different forms, formulations, and delivery methods for marijuana, as well as evidence regarding the effects of marijuana at various dosages or concentrations, may be relevant,” according to the May 21 Federal Register.
While Milgram had the authority to bypass the administrative law judge hearing process and move straight to a final rule, she announced Aug. 26 that she granted the hearing, which may be continued from day to day or recessed to a later date without notice. The “DEA is committed to conducting a transparent proceeding,” Milgram wrote.
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With the hearing process now pending, political leaders in Washington are continuing to put pressure on the DEA.
“When Congress passed the CSA, it recognized that our scientific and medical understanding is constantly evolving and granted the attorney general and the secretary of HHS important responsibilities in ensuring that the law reflects this knowledge,” Nadler and Pallone wrote. “We applaud the Biden-Harris administration’s efforts in initiating this review, conducting a thorough scientific and medical analysis, and engaging in the rulemaking process.”
The representatives urged Milgram and Garland to follow through and complete the process.
Reps. Jerry Nadler and Frank Pallone Jr., both ranking members, wrote a letter to the attorney general and DEA administrator. Read More