“Had we not intervened, the hearing would have gone ahead with DEA openly tipping the scales against rescheduling.”
By Michael DeGiglio, Village Farms & Robert Head, Hemp for Victory
As the leaders of Village Farms and Hemp for Victory, both of which had been selected to participate in next week’s Drug Enforcement Administration hearing on rescheduling, we welcomed Monday’s pause in the proceedings.
Had we not intervened, the hearing would have gone ahead with DEA openly tipping the scales against rescheduling and setting the stage for an acting career official to formally reject the move to Schedule III. Instead, the matter will likely be handled in the near future by the incoming Justice Department and yet-to-be-named DEA Administrator under President-elect Donald Trump, who publicly endorsed rescheduling on the campaign trail.
Unfortunately, the recent Marijuana Moment op-ed by National Cannabis Industry Association (NCIA) board member Khurshid Khoja about our efforts, “Don’t Blame DEA for Marijuana Hearing Cancellation Caused by Cannabis Industry Lawyers,” fundamentally misses this point and impugns the motives of attorneys working tirelessly and creatively to advance the cause of cannabis reform.
Simply put, DEA is no friend to cannabis reform or the rescheduling process (as Marijuana Moment has thoroughly covered, including here, here, and here).
Those familiar with the agency’s history will recall that in the 1980s, DEA overruled another administrative law judge’s (ALJ) recommendation to reschedule cannabis. And in multiple pleadings before Chief ALJ John Mulrooney this time around, attorneys for Village Farms, Hemp for Victory and others have laid bare rampant improper conduct by DEA officials and prohibitionist organizations.
If the hearing had resulted in a Schedule I or II recommendation—as could reasonably be expected since the deck was heavily stacked against Schedule III—it would have been game over for the state-regulated cannabis industry.
We, in consultation with many other pro-rescheduling parties, made a calculated decision to expose DEA’s unlawful conduct in an attempt to secure a fair and transparent hearing and properly defend the historic shift to Schedule III. Had these measures not been taken, it is our strong belief that rescheduling was charting a course for certain failure.
As much as we may wish otherwise, rescheduling cannabis is a complicated regulatory process. It involves a range of scientific, medical, social, economic and political considerations that require the input and expertise of various stakeholders and perspectives—which is precisely the point of the ALJ hearing process.
Mr. Khoja points to instances where the judge questions the strategy of multiple parties, including our own, but he omits the many instances where the same judge excoriates DEA for improper conduct.
Our attorneys have repeatedly raised concerns about improper ex parte communications between DEA and prohibitionist groups, which remain undisclosed and unaddressed by the agency. Those communications included providing covert support to the Tennessee Bureau of Investigation (which opposes rescheduling) to secure its participation as a designated participant, while summarily dismissing Colorado’s application to participate (notwithstanding the fact that Colorado’s petition came directly from the governor, and the state has been regulating medical cannabis for ten years).
To even the most casual observers, this is a shocking revelation of unethical conduct which, in our view, illuminates the adversarial motives and desired outcome of the agency in these proceedings.
When DEA was pressed to finally disclose their witness and exhibit list, they submitted a paper summarizing many of the perceived dangers of cannabis without acknowledging any of the hundreds of studies pointing to its low abuse potential and currently accepted medical use.
DEA indicated that it would not call any new witnesses—no doctors, scientists or DEA researchers—to bolster the case for rescheduling and even publicly disagreed with a key determination by the Justice Department’s Office of Legal Counsel. In the midst of the rulemaking, DEA published prohibitionist propaganda.
DEA’s wrongdoing—its unlawful ex parte communications, its coordination with prohibitionist groups to thwart rescheduling and its attempt to subvert a process designed to promote transparency and public trust—is the reason there is a delay in the proceedings. When these sorts of things occur, the law requires further investigation to ensure a complete record and to salvage any hope of fairness, transparency and legitimacy.
Leaving these appalling irregularities unaddressed—and failing to build a record of what has happened—would have meant squandering the best chance we have in our lifetimes to turn the tide on federal cannabis policy.
We owe it to the tens of thousands of activists who have worked on this issue over the past 50 years, to the patients who rely on cannabis, and importantly to the veterans who have suffered or even lost their lives because all they had for treatment was Department of Veterans Affairs pharmacotherapy, to do everything in our power to defend this historic opportunity.
We have welcomed Mr. Khoja to collaborate with us on behalf of NCIA membership and encouraged feedback and input that would productively alter our strategy. Despite this, he has never suggested an alternative approach, and we fail to understand what he thinks can be gained from inflammatory attacks on allied parties at this stage in the process. By focusing on procedural disputes and grievances, he is drawing attention away from DEA’s egregious behavior and the substantive and compelling arguments and evidence that cannabis lawyers have presented in favor of rescheduling marijuana.
Despite this unfortunate distraction, we have seen nearly all pro-reform stakeholders meet this historic moment with collaboration and respect for one another. We do not take this once-in-a-lifetime opportunity to fight for the future of cannabis policy lightly, and we are also frustrated that the process had to be delayed. But we need to keep the focus on the task at hand and work together with professionalism, integrity, compassion and creativity to achieve our shared objective.
The entire movement is counting on it.
Michael DeGiglio, a retired U.S. Navy captain and naval aviator, is president, chief executive officer and Founder of Village Farms. Robert Head, an Army veteran and infantryman, is board chair of Hemp for Victory.
“Had we not intervened, the hearing would have gone ahead with DEA openly tipping the scales against rescheduling.” By Michael DeGiglio, Village Farms & Robert Head, Hemp for Victory As the leaders of Village Farms and Hemp for Victory, both of which had been selected to participate in next week’s Drug Enforcement Administration hearing on Read More
