The Drug Enforcement Administration (DEA) made its final case to the administrative law judge who oversaw the cannabis rescheduling hearing: “Marijuana can no longer remain in Schedule I.”
The DEA – an agency that has notoriously blocked cannabis reform since the 1970s – and seven anti-rescheduling parties filed their post-hearing briefs on Aug. 17, offering their proposed findings of fact, conclusions of law and closing arguments in an attempt to sway DEA Chief Administrative Law Judge Derek Julius’ final recommendation.
The DEA served as the proponent of the proposed rule to loosen restrictions on cannabis by reclassifying it as a Schedule III drug under the Controlled Substances Act (CSA) following a 2023 recommendation by the U.S. Department of Health and Human Services (HHS).
Under an April 2026 order from then-Acting Attorney General Todd Blanche, the Trump administration’s rescheduling hearing (for the Biden administration’s proposed rule) was held June 29 through July 15, allowing the DEA and seven “opposed parties” to debate the merits of the proposed rule and call upon witnesses to testify.
At the hearing’s conclusion, Julius ordered the participating parties to limit their final briefs to 50 double-spaced pages, utilizing 12-point characters and 1-inch margins.
The DEA focused its post-hearing brief on the validity of the HHS 10-month scientific and medical evaluation conducted by its satellite agency, the Food and Drug Administration (FDA), which led the August 2023 Schedule III recommendation. In particular, the DEA hammered on the HHS finding that cannabis has currently accepted medical use in the U.S. and therefore can no longer be listed in Schedule I.
During the 10-month evaluation, federal officials determined that cannabis has currently accepted medical use for the treatment of at least three conditions: anorexia related to a medical condition, nausea and vomiting (e.g., chemotherapy-induced), and pain.
The DEA also focused its post-hearing brief on discrediting nearly all of the opposed parties’ witnesses.
“The opposed parties called several witnesses and attempted to designate them as expert witnesses,” the DEA’s legal team wrote. “Many of the so-called expert witnesses do not have the qualifications to be recognized as an expert witness. For the ones who actually possessed the requisite credentials to be recognized as an expert in their respective fields, the opposed party solicited testimony that was well beyond the scope of their expertise or asked them to opine on matters that are not relevant to the ultimate issue. The tribunal should give such testimony little to no weight.”
The DEA provided Deepak D’Souza as an example.
A Veterans Affairs staff psychiatrist and a Yale Medicine psychiatry professor, D’Souza testified as a witness for the “opposed states” of Idaho, Indiana and Nebraska.
“Dr. D’Souza was proffered as an expert in five areas: the pathophysiology of psychotic disorders, conducting clinical trials, [the] peer review process for medical research, uses of marijuana for medical purposes, and effects of marijuana on the human brain and body,” the DEA team wrote. “The opposed states, however, solicited testimony from Dr. D’Souza about pain management, which is outside Dr. D’Souza’s admitted expertise. Dr. D’Souza himself limited his own expertise to the practice and field of psychiatry. As such, any testimony from Dr. D’Souza outside of his own proffered expertise should be given little to no weight by this tribunal.”
Idaho, Indiana and Nebraska also called Sheriff William Honsal, of Humboldt County, Calif., as an expert witness in crime associated with cannabis, diversion and the effects of legalization.
“The opposed states failed, in any meaningful capacity, to properly notice Sheriff Honsal as an expert at any point prior to his testimony,” the DEA team wrote. “As a witness for the opposed states, Sheriff Honsal admitted he has no meaningful connection to Nebraska, Idaho or Indiana.”
Furthermore, the DEA argued that many of the opposed parties’ testimonies were “irrelevant to the ultimate issue: whether cannabis has currently accepted medical use (CAMU) and its appropriate scheduling.
The National Drug and Alcohol Screening Association (NDASA) called its own executive director, Mary Jo McGuire, and Patrice Kelly, formerly of the U.S. Department of Transportation, as its witnesses.
“Patrice Kelly’s testimony focused solely on hypothetical, future hurdles that may or may not present themselves in workplace drug testing,” according to the DEA. “NDASA failed to provide any proper or sufficient notice as to her purpose or testimony. Additionally, despite this lack of notice, NDASA attempted to provide Ms. Kelly as a legal expert in federal drug testing.”
The DEA’s legal team also argued that McGuire based her opposition to rescheduling on the “hypothetical assumption” that testing in the workplace may become difficult, though not impossible.
Driving Under the Influence of Drugs (DUID) Victim Voices called its founder, Ed Wood, as an expert witness on drugged driving.
The DEA argued that Wood testified extensively against the legalization of cannabis, not the regulation of cannabis, and that he provided “irrelevant and speculative” testimony regarding impacts on cannabis prosecutions and law enforcement impairment testing.
Also, the DEA team accused Wood of disregarding the tribunal’s instructions that all witnesses were to be sequestered and not observe testimony until properly excused by the tribunal.
“Mr. Wood admitted to reviewing and analyzing the testimony of the government’s witnesses prior to his testimony,” the DEA team wrote. “Such influence was on display throughout Mr. Wood’s testimony as he commented on specific phrasing and statements of government witnesses. This disregard for the tribunal’s instruction led to a fatal bias in testimony that is unable to be cured other than providing little to no weight to the testimony of Wood.”
The DEA argued that the following witness testimonies were also irrelevant to the ultimate issue:
- Laura Stack, a mother who spoke about her 19-year-old son’s death by suicide after cannabis use.
- Erica Stephens, the assistant special agent in charge of the Tennessee Bureau of Investigation’s Dangerous Drugs Task Force, who talked about her personal experience working with cannabis from an enforcement and testing perspective and spoke about “deregulation” and “legalization.” Tennessee remains a cannabis prohibition state.
- Karen Randall, a Colorado-based physician who was professed “as an expert in the field of emergency medicine with a specialty in pediatric medicine and a certificate in cannabis medicine and science,” focused her testimony on the dangers of adolescents consuming marijuana.
The DEA also singled out Phillip A. Drum, a California pharmacist who represented himself as an interested party on the stand, tendering himself as an expert in hospital pharmacy practice with vast knowledge of impaired cannabis driving.
“Dr. Drum testified that, in his opinion, there is no scientific indication or medical use for a plant-based marijuana product despite agreeing that doctors and pharmacists reviewing such studies may come to different conclusions and opinions,” the DEA team wrote.
“Dr. Drum testified that Schedule II ‘would be potentially more appropriate level for marijuana’ because of its ‘rapid absorption,’” according to the DEA’s legal team. “To this point, Dr. Drum focused portions of his testimony on completely irrelevant product marketing, packaging inserts and the perceived difficulty for a pharmacist to accurately decipher the appropriate amount to dispense to a patient. Further, Dr. Drum’s opinion on marijuana’s medical use for specific conditions, primarily cachexia and cancer pain patients, is limited to his personal experience with two patients.”
According to the DEA, Drum also testified on the effects of cannabis on pregnant women and combat veterans, which was “well outside” his expertise.
In addition, the DEA also argued that other opposed party witness testimonies actually backed its case to move cannabis to Schedule III, including that of Bertha Madras, a Harvard psychiatry professor and former White House drug policy official, whom Smart Approaches to Marijuana (SAM) called to the stand.
“Dr. Bertha Madras, the addiction expert presented by SAM, testified that there is scientific evidence of marijuana’s efficacy for neuropathic pain patients, although she believes that the science is weak,” the DEA team wrote.
Madras also testified that clinical trials showed that cannabis had positive effects for cachexia/wasting syndrome, according to the DEA.
“Dr. Madras, through her testimony and demonstrative exhibit, noted the benefits of marijuana in specific areas to include cachexia/wasting syndrome, secondary effects on appetite and pain for cancer patients, neuropathic pain, and in cases of severe nausea,” the DEA team wrote.
SAM’s other witness, Luli Akinfiresoye, a DEA Drug and Chemical Evaluation Section pharmacologist, is the lone witness whom the DEA did not mention in its post-hearing brief. Akinfiresoye testified that cannabis lacks CAMU under a traditional five-part test used by the HHS and DEA, dismissing the HHS’ new two-part test utilized in 2023.
In its post-hearing brief, however, the DEA’s legal team defended the two-part test.
“HHS formulated a two-part inquiry to conduct this assessment because neither FDA approval nor DEA’s five-part test examine[d] whether health care practitioners are actually using a drug to treat a condition or whether the entities regulating those practitioners allow the drug to be so used,” the DEA’s legal team wrote. “FDA determined that ignoring widespread clinical experience with a drug that is sanctioned by state medical regulators when evaluating whether a drug has CAMU is at odds with the plain meaning of Section 812(b).”
The DEA pointed out that at the time of the HHS/FDA’s 2023 evaluation, more than 30,000 doctors were allowed to recommend cannabis to more than 6 million patients in the 38 states that had established medical cannabis regulatory schemes, and that none of the opposed parties contradicted those findings.
Along with Madras, the DEA spotlighted another opposed party witness, Kenneth Finn, a physician who practices comprehensive pain medicine in Arizona, to bolster its case.
“Dr. Kenneth Finn, also a pain management physician, admitted that he previously recommended marijuana for his pain patients and currently believes that there is likely a therapeutic benefit to marijuana,” the DEA team wrote. “His concern is mainly with the dosing and quality controls for the substance.”
Although they represented the opposed parties, Drum, Madras and Finn testified cannabis has been shown in studies to provide therapeutic benefits to patients suffering from chronic pain, anorexia/wasting, nausea and vomiting, according to the DEA.
Leaning on the Department of Justice’s Office of Legal Counsel’s 2024 opinion that the HHS’ two-part test was sufficient, the DEA argued that the opposed parties did not offer sufficient fact or expert testimony to rebut the HHS’ findings that cannabis has CAMU.
“In contrast, the opposition parties presented evidence establishing that marijuana should be controlled because transportation, criminal enforcement and employer operations are undermined if the substance is legalized,” the DEA legal team wrote. “The government agrees: marijuana should remain a controlled substance but should be transferred from Schedule I to Schedule III.”
The DEA asserted that the opposed parties’ evidence boils down to the argument that reclassifying cannabis as a Schedule III substance would pose employment and enforcement difficulties “that are no different” than other controlled substances in schedules II through V.
“The evidence did not rebut the government’s prima facie case that marijuana has CAMU and thus, no longer fits the statutory requirements to remain in Schedule I and better fits the statutory requirements for Schedule III,” the DEA legal team wrote. “As such, the government respectfully requests that this tribunal expeditiously recommend that marijuana, as defined in 21 U.S.C. § 802(16)(A), be transferred from Schedule I to Schedule III.”
