Cannabis rescheduling is a process, not a policy (yet)

The recent announcement by the Drug Enforcement Administration (DEA) of its adoption of the Health and Human Services (HHS) recommendation to reschedule cannabis use from Schedule 1 of the Controlled Substances Act (CSA) to Schedule 3 is a historic event. For the first time since the CSA was created about 50 years ago, two federal government agencies are admitting that cannabis is a medicine. This could be considered a good thing or a disturbing thing, depending on who you ask.

Before I get to the difference between rescheduling and rescheduling (see my next column), it’s worth noting the process the DEA launched on April 30. There is still a long way to go before the transition to Schedule 3 is finalized, and a lot could go to waste in the process.

The first step in the rescheduling process starts now. The DEA sent its approval to the White House Office of Management and Budget (OMB). This agency has up to 90 days to review the HHS and DEA recommendations and stamp them. Given that this review began under the executive branch, it is unlikely that OMB would block or delay it, but it legally has the authority to do so. As of this writing, it appears that President Biden may have already approved this step in his May 16 announcement.

This is followed by a comment period during which any citizen will have the opportunity to post comments to the public record. The comment period will be 30-90 days. According to Vicente, a cannabis law firm, the DEA must review and respond to each submitted comment. If (probably) thousands of comments are submitted, the DEA must review and respond to each one.

This could slow things down for months, if not longer. Given how many people and groups have strong opinions about cannabis policy, the DEA may not be prepared to handle this kind of onslaught of public comments. They can also reply to each comment with a simple “noted” response. No one knows, but there is a possibility that this step of the process could take some time.

After submitting comments and responding, interested parties (anyone who submitted a comment) have the right to request an administrative hearing from the DEA (at their discretion).

“The administrative hearing is supervised by an administrative law judge who presides and has the authority to administer oaths, issue subpoenas, accept or reject evidence, and authorize cross-examination,” Vicente’s website reads. “The type of evidence that may be presented at trial is similar to regular court proceedings and must meet DEA scheduling recommendations. Opponents will undoubtedly request a hearing and bombard the agency with comments showing why marijuana must remain on Schedule I or not expand beyond Schedule II. Submitting comments to build a robust record of evidence to support marijuana reclassification is critical to the success of the process.”

In other words, there will be a fight over it in the public comments, and an administrative law judge may have the power to significantly change the rescheduling recommendation. This process implies that there may be multiple administrative hearings involving more than one judge, which may result in more than one finding or judgment. Given that the law is slow at best, these hearings could further slow down the deadlines. And we are not finished with this process yet.

Once all administrative law hearings are completed, the DEA reviews the entire file and makes a final decision. It is possible that at this stage the DEA may reject the rescheduling based on any number of citations from public comments or the record of administrative hearings. No one can know what will happen until public comments and hearings occur and the DEA responds to each of them.

The next phase gets really interesting. Assuming that after all these comments and reviews, the DEA agrees to reschedule, it will publish the new rule in the Federal Register, but it will not become active until 30 days after it is published. This 30-day period is intended to give any injured party the right to bring a legal action against the rescheduling in federal court. There is no doubt that opponents of postponement and legalization will file lawsuits, probably more than one.

Attorneys can also file lawsuits if they disagree with the final rule. Supporters who prefer rescheduling over rescheduling will no doubt do so. All this legal proceedings may result in a delay in the issuance of the final order or even a complete overturning if the opponent prevails in court. Bare minimum, lawsuits will take much longer to resolve.

Experience at the state level has already shown that there will be a large number of comments, likely numerous and lengthy administrative hearings, and a number of lawsuits. This process can take years, not months, and rescheduling relief will not occur until the process is completed successfully. Until then, the status quo in Schedule 1 will remain intact (unless Congress passes its own legalization measures and the President signs them). In summary, the Schedule 3 deal is still far from finalized and whatever ultimately happens will not happen quickly.

When it comes to ending federal prohibition, nothing is easy or expedient. Any cannabis inmate currently serving time in federal custody can attest to this. The Controlled Substances Act is written in such a way that changing the status of cannabis is difficult and burdensome. Richard Nixon and Harry J. Anslinger designed something that cannot be undone without enormous support and incredible effort.

It is often said that making public policy is like making sausages, it is often unpleasant to think about what goes into them. The public comment period will begin soon. This will start the rollercoaster towards potential reform. Some of them can make your stomach turn, as any sausage making can do. I will keep you updated on developments as the administrative review unfolds. Buckle up and go for a long ride.