Attorneys for a cannabis company and advocacy group that are set to testify in the Drug Enforcement Administration’s (DEA) marijuana rescheduling hearing process beginning this month say new evidence has come to light revealing that the agency actually opposes the proposed rule it is supposed to defend and has engaged in improper communications with other opponents of the reform.
On Tuesday, Village Farms International and Hemp for Victory laid out their claims in a motion requesting that the DEA administrative law judge (ALJ) overseeing the hearing reconsider their earlier request to remove the agency as the proponent of the proposed rule to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA).
Part of the motion addresses a new declaration submitted to the ALJ by a DEA official last week, wherein the agency pharmacologist seemed to question the basis of the reclassification proposal by echoing “anti-rescheduling talking points in attempting to show that marijuana has a high abuse potential and no currently accepted medical use,” the cannabis groups said in their latest motion.
It says DEA based its analysis on a legal test that was previously rejected by the Justice Department’s Office of Legal Counsel (OLC), and the agency’s “defiance of OLC’s binding opinion is stunning proof of its open hostility to the Proposed Rule.”
Specifically, when assessing whether marijuana has currently accepted medical value, DEA used a five-factor review that OLC had described as “impermissibly narrow,” running counter to the two-factor review standard applied by the U.S. Department of Health and Human Services (HHS) to reach conclusion to recommend rescheduling.
What’s more, the attorneys said the timing of the DEA’s declaration filing is further evidence that DEA opposes the policy change, noting that the agency was statutorily required to submit any relevant data on the proposed rule before HHS carried out its scientific review and the rulemaking process was formally initiated.
“By waiting until practically the eve of the hearing to submit its data, DEA has thwarted HHS’s review, sidestepped the notice-and-comment process, and deprived pro-rescheduling [designated participants, or DPs] of the fair and transparent hearing that the Administrative Procedure Act (APA) and due process require,” it says. “In so doing, DEA has violated the CSA, the APA, and its own regulations.”
The motion then alleges that there’s “additional damning evidence of ex parte and undisclosed communications has emerged,” with DEA failing to disclose nearly 100 requests to participate in the upcoming hearings, as well as “communication and coordination with at least one anti-rescheduling DP, the Tennessee Bureau of Investigation.”
One of the previously undisclosed requests to participate in the hearing came from the state of Colorado, which was denied by DEA despite the state’s extensive background in regulating cannabis. Yet the attorney general of Nebraska was permitted to serve as an anti-rescheduling witness.
“After blocking Colorado’s efforts to stand up for its regulatory system and the Proposed Rule in these proceedings, DEA rolled out the red carpet for the State of Nebraska—an anti-rescheduling DP that is now working hand-inhand with SAM, the anti-rescheduling DP whose President and CEO has bragged on social media about his confidential DEA sources and special insider knowledge of DEA’s campaign of opposition to the Proposed Rule.”
“This new evidence confirms that DEA has worked to stack the deck against the Proposed Rule by favoring anti-rescheduling parties in its selection of hearing participants and obstructing a balanced and thoughtful process based on science and evidence,” the filing says.
DEA ALJ John Mulrooney rejected the cannabis groups’ earlier request to remove the agency as the proponent of the rescheduling rule, but he did seem to put weight into separate allegations that it engaged in unlawful communication with another DP, the prohibitionist group Smart Approaches to Marijuana (SAM).
Relatedly, a federal judge recently dismissed a lawsuit seeking to compel DEA to turn over its communications with the anti-cannabis organization, Law360 reported.
Additionally, the new motion from Village Farms and Hemp for Victory asserts that recently published documents reveal that DEA lists another anti-drug group that’s participating in the hearing—Community Anti-Drug Coalitions of America (CADCA)—”as a resource for information on marijuana.”
“And CADCA, in turn, has announced that it has been working as DEA’s ‘partner’ on matters related to fentanyl,” it says. “Neither DEA nor CADCA has disclosed this potential conflict of interest to this Tribunal.”
“At a minimum, this Tribunal should postpone the upcoming hearing to allow for an investigation into DEA’s conduct, including its ex parte and undisclosed communications with anti-rescheduling organizations and other entities. As part of that investigation, this Tribunal should order DEA to disclose its communications and other relevant information; allow for discovery; hold an evidentiary hearing; and make on-the-record findings.”
Following such an investigation, the attorneys said further relief is warranted, urging the judge to mandate that DEA “declare whether it supports or opposes the proposed transfer of marijuana to schedule III.” Ultimately, they’re renewing their call for the agency’s removal from the process.
“As Movants have made clear, DEA’s position as proponent of the Proposed Rule has been improper from the start,” they said. “To permit it to maintain that position even after filing what amounts to an open declaration of war on the Proposed Rule would be a mockery of the adversarial process.”
Shane Pennington, an attorney representing Village Farms and Hemp for Victory, said in a press release that the “new evidence presented in this filing strongly suggests the DEA is using its authority in these proceedings to subvert the process and thwart the Schedule III proposal which it vehemently opposes.”
“We believe an immediate special evidentiary hearing into the nature, extent, source, and effect of all ex parte communications is essential, and until that process is unquestionably complete there will be no way to ensure fairness and transparency, preserve any meaningful opportunity for judicial review based on the whole record, or to salvage the public legitimacy of these proceedings,” he said.
Meanwhile, the DEA ALJ recently denied a cannabis research company’s request to allow it to add a young medical marijuana patient and advocate as a witness in the upcoming rescheduling hearing.
Mulrooney separately said last month that DEA made a critical “blunder” in its effort to issue subpoenas to force Food and Drug Administration (FDA) officials to testify in rescheduling process—but he allowed the agency to fix the error and ultimately granted the request.
Also, one of the nation’s leading marijuana industry associations asked the judge to clarify whether it will be afforded the opportunity to cross-examine DEA during the upcoming hearings on the cannabis rescheduling proposal.
Further, a coalition of health professionals that advocates for cannabis reform recently asked that the DEA judge halt future marijuana rescheduling hearings until a federal court is able to address a series of allegations they’re raising about the agency’s witness selection process.
That came on the same day the Mulrooney issued a ruling that laid out the timeline for merit-based hearings on the rescheduling proposal.
Doctors for Drug Policy Reform (D4DPR) requested that the DEA judge stay the hearings—which are currently set to commence on January 21—pending a review from the U.S. District Court for the District of Columbia Circuit. A separate organization that was also denied participation, Veterans Action Council (VAC), similarly filed a petition with the same court last month to request a review of the agency’s decision to exclude it from the proceedings.
The rescheduling proceedings have generated significant public interest. While moving marijuana to Schedule III wouldn’t federally legalize it, the reform would free up licensed cannabis businesses to take federal tax deductions and remove certain research barriers.
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In a prehearing statement submitted in November, DEA previewed the testimony its two agency witnesses plan to provide at the upcoming hearing—without clarifying where it stands on the rescheduling proposal.
While the initial preliminary hearing happened last week, the merit-based proceedings were delayed until at least early 2025 after Mulrooney notified DEA that it provided insufficient information about the 25 selected witnesses that DEA Administrator Anne Milgram submitted.
Separately, the DEA judge has also denied a request from a cannabis and psychedelics researcher to postpone the upcoming rescheduling hearing over the agency’s alleged “improper blocking” of witnesses, while arguing that the process should be halted at least until President-elect Donald Trump’s administration comes into power so it can review the rulemaking.
Mulrooney also rejected a veterans group’s petition to participate in the rescheduling hearing, which the organization called a “travesty of justice” that excludes key voices that would be affected by the potential policy change. That group has asked the U.S. Court of Appeals for the D.C. Circuit to intervene on its behalf.
For what it’s worth, Vice President Kamala Harris said recently that part of the reason for the delay in the administration’s marijuana rescheduling effort is federal bureaucracy that “slows things down,” including at DEA.
In March, Harris also expressed some frustration with the bureaucratic process of rescheduling marijuana, prior to DOJ’s formal recommendation, calling on DEA to expediently finish the job.
While the Biden–Harris administration facilitated the review that led to the DOJ rescheduling proposal, Trump has also voiced support for the reform.
Read the motion seeking DEA’s removal from the marijuana rescheduling process, as well as the DEA official’s declaration, below:
DEA Motion Rescheduling by KyleJaeger
Ohio Businesses Sold $242 Million Worth Of Recreational Marijuana In 2024, State Agency Says
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Attorneys for a cannabis company and advocacy group that are set to testify in the Drug Enforcement Administration’s (DEA) marijuana rescheduling hearing process beginning this month say new evidence has come to light revealing that the agency actually opposes the proposed rule it is supposed to defend and has engaged in improper communications with other Read More
