DEA Selects Only Cannabis Opponents For Rescheduling Hearing
Crucial event begins on June 29.
In the weeks since cannabis under a state medical license was moved to Schedule III, US multi-state operators (MSOs) have wasted no time in capitalizing on the historic reclassification.
As Business of Cannabis explored in detail in our recent ‘Listed’ series, nearly a dozen companies have now signaled their intention to upgrade their public listings to one of the major US exchanges, a prospect made possible by the April rescheduling order.
Critically, the majority of these companies are making preparations to uplist only when the highly anticipated Administrative Law Judge (ALJ) hearing, set to determine whether rescheduling will be extended to adult-use cannabis, has concluded.
With only days until the hearing is scheduled to open on 29 June, the Drug Enforcement Administration (DEA) has published its list of participants, signaling to an optimistic industry that, despite recent progress, the DEA may still be willing to place its finger on the scales.
7 cannabis critics, 0 industry representatives
The DEA published its list of approved participants on 18 June, selecting seven organizations staunchly opposed to cannabis liberalization and no participant from the sector itself.
The outcome has a procedural explanation. According to reporting from Marijuana Moment, pro-reform applicants received rejection letters stating they do not meet the definition of an interested person because they are not ‘adversely affected or aggrieved by any rule or proposed rule issuable’ — the legal threshold under 21 CFR 1300.01(b) that governs DEA hearing participation.
The Biden-era hearings did include industry participants such as Village Farms and The Doc App, however. The DEA has discretion in how it applies the standard.
The DEA is also nominally the proponent of rescheduling, which means the room is supposed to be asymmetric by design, with the agency arguing for its own rule and opponents arguing against it.
As such, it is less a case of the DEA actively excluding cannabis advocates, and more one in which the legal architecture at its disposal has ensured that the reform’s most invested stakeholders have no formal standing, and that the agency nominally arguing for reform has a track record of working against it.
The groups and individuals selected to participate in the hearing include:
The National Drug & Alcohol Screening Association (NDASA)
NDASA held a Capitol Hill press conference in May, calling rescheduling a ‘Pandora’s box of public health consequences.’
They argued that rescheduling would eliminate DOT’s legal authority to test pilots, truck drivers, school bus drivers, and air traffic controllers for THC.
Executive Director Jo McGuire testified that post-accident positive tests have risen since state legalisation.
They’ve also filed a lawsuit to stay the April order. Represent 3,000+ members in the drug testing industry.
Smart Approaches to Marijuana (SAM)
Chief Executive Kevin Sabet: ‘Rescheduling marijuana would be the greatest drug policy mistake in a generation.’
Sabet: ‘Rescheduling marijuana to Schedule III has no scientific basis and would hand the industry billions of dollars in rewards for targeting children.’
SAM’s political action arm is currently bankrolling a ballot initiative in Massachusetts to reverse adult-use cannabis sales.
Among many other litigation efforts, SAM filed a suit to stay the April rescheduling order.
The States of Nebraska, Idaho, Indiana, and Louisiana
Nebraska, Indiana, and Louisiana filed a joint lawsuit arguing the April rescheduling order violated the 1967 Single Convention on Narcotic Drugs international treaty.
The AGs also argued the administration bypassed standard notice-and-comment rulemaking procedures.
Louisiana has since withdrawn from the lawsuit.
Also filed a lawsuit to stay the April rescheduling order.
Pain medicine specialist based in Prescott, Arizona, who has filed legal proceedings arguing rescheduling would require him to recommend cannabis products without standardised dosing protocols, FDA-approved labelling, or drug interaction data.
Described in filings as having ‘decades of clinical experience treating patients harmed by high-potency marijuana products.’
A 30-year licensed pharmacist with a doctorate from the University of California, San Francisco, whose published research focuses exclusively on cannabis-impaired driving and road safety.
Drum began campaigning against cannabis following a personal family tragedy. His published papers include analyses of fatal crash data in Colorado, Washington, and Illinois, and a 2015 piece in Formulary titled ‘How marijuana promoters bypass the law – and the public good.’
His 2015 peer-reviewed study in Traffic Injury Prevention found that between 42% and 70% of cannabinoid-positive drivers tested below the legal THC limit, arguing that blood-testing delays undermine DUI enforcement in states where cannabis is legal.
The ALJ presiding over the hearing will be former senior DEA counsel Derek C. Julius. While it is not unusual for DEA ALJs to be former DEA staff, Julius came specifically from the Office of Chief Counsel, the very division accused during the Biden-era proceedings of secretly coordinating with anti-rescheduling parties.
The previous ALJ, Judge John Mulrooney, publicly condemned the DEA for ‘astonishing’ conduct before those hearings were cancelled.
The hearing, scheduled to run until 15 July at the DEA Hearing Facility in Arlington, Virginia, will formally consider the proposed transfer of cannabis from Schedule I to Schedule III, including the Biden administration’s original proposal to reschedule all cannabis products, going beyond the medical-only reclassification enacted in April.
With prehearing statements due on 24 June, the seven selected participants have five days to set out their positions — and the DEA’s first procedural decisions under its new presiding officer will follow shortly after.
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