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An administrative law judge for the Department of Justice began hearings Monday on rulemaking for rescheduling marijuana from a Schedule I to a Schedule III drug.
As a Schedule I drug, under federal law, marijuana is illegal, even though 24 states have legalized it for recreational use and 38 allow it for medical use. It’s in the same category as heroin, mescaline, LSD, MDMA, and methaqualone, and as part of that category, marijuana has no legitimate medical use and a high potential for abuse.
As a Schedule III substance, marijuana would be in the same category as Tylenol with codeine, ketamine, anabolic steroids, and testosterone. Rescheduling would free up opportunities for marijuana businesses to engage in banking, including using credit cards and access to capital, and free companies from Internal Revenue Service regulations. That’s known as IRS Schedule 280E, which prohibits marijuana businesses from deducting business expenses from gross income, even in states that have legalized it.
As a Schedule III drug, it would still be considered a controlled substance. Rescheduling also could have implications for employers, particularly under the Americans with Disabilities Act.
The road to Monday’s hearing began in October 2022, when President Joe Biden called for a review of U.S. cannabis policy.
In May, the Department of Justice proposed transferring marijuana from Schedule I of the Controlled Substances Act to Schedule III, “consistent with the view of the Department of Health and Human Services that marijuana has a currently accepted medical use as well as HHS’s views about marijuana’s abuse potential and level of physical or psychological dependence,” the DEA said in a statement.
The DEA announced the rulemaking hearing shortly after, and during a 60-day public comment period, almost 43,000 comments were received. One estimate said 70% of those comments supported rescheduling and outright decriminalization.
Judge John J. Mulrooney, the Chief Administrative Law Judge at the United States Department of Justice, Drug Enforcement Administration, conducted Monday’s hearing.
Mulrooney said the hearing is “not a trial about whether marijuana is good or marijuana is bad because I don’t know whether it’s good or it’s bad. My issues are much more narrow than that, it has to do with addiction potential and several other little pigeonholes that I have” and that he did not identify.
Mulrooney noted the comments, but said reading them would exceed his lifespan and he would not consider them for purposes of the hearing. He also rejected witnesses such as patients who have used it for medical purposes and data from what Mulrooney said are “non-experts.”
Attorney Matthew Zorn, representing the Connecticut office of cannabis ombudsman, questioned whether DEA should propose the rule, given concerns that the agency might not support rescheduling.
“Proponent just means that they’re proposing the rule, it does not mean that they’re supporting the rule,” he said, noting he still doesn’t know if the government supports the rule, and accused the DEA of trying to “sandbag” the hearing since they brought no exhibits to support the rule.
That earned Zorn a bit of a scolding from Mulrooney, who noted that the government is both the proponent and represents the DEA, which does not need to be a “cheerleader” for the rule.
Mulrooney ruled in October that further hearings would not take place until mid-January. That delay was in part because the DEA’s list of 23 proposed witnesses didn’t identify their position on the issue or provide addresses or contact information. The DEA also did not have all its proposed exhibits ready for the hearing on Monday.
That list of witnesses includes Smart Approaches to Marijuana (SAM), whose executive vice president, Luke Niferatos, lives in Denver. Zorn also seeks an injunction to obtain information on unlawful communications that he said took place between SAM and the DEA.
The public comments included a submission from Gov. Jared Polis. In his July 22 letter to Ann Milgram, the administrator for the DEA, Polis pointed out marijuana has been used for medical purposes since 2000 and for recreational use since 2014. Regulation works, Polis said. “Seizures are in decline, arrests are in decline, fewer people are incarcerated for cannabis.”
Polis also said that youth use has not increased since legalization and that they use cannabis at lower rates than their peers in other states. “…legalization contributes to decreased youth use, not the opposite.” Polis wrote that the industry has led to 40,000 jobs in Colorado and contributed $2.7 billion in tax revenue since 2014.
However, several letters contradicted the state’s position, claiming that traffic deaths where drivers tested positive for marijuana increased by 138% since 2014 when recreational marijuana was legalized. That came from the Substance Abuse Program Administrators Association, a trade group involved in workplace drug and alcohol testing, and Oregon-based Citizens for Public Safety, Quality of Life & Property Values, among others. Other letters pointed to higher utilization of emergency rooms in Colorado due to marijuana-related use and negative impacts on youth learning.
”}]] DEA holds hearing on rescheduling marijuana from Schedule I to Schedule III. Public comments and expert testimonies weigh in. Read More
