Those waiting to find out if cannabis will be rescheduled will have to wait at least a few more months. The rescheduling hearing will begin Jan. 21, 2025, and run through March 6, according to the Prehearing Ruling signed Dec. 4 by Quinn Fox, staff assistant to the Chief Judge, Office of Administrative Law Judges (OALJ). The ruling (DEA Docket No. 1362, Hearing Docket No. 24-44) also lays out the hearing schedule in detail, as well as outlines various procedures to which hearing participants must adhere.
The ruling follows the Dec. 2 preliminary hearing conducted in connection with the publication of the notice of proposed rulemaking (NPRM) entered into the Federal Register by the Department of Justice (DOJ) on May 21 to move cannabis from Schedule I of the Controlled Substances Act (CSA) to Schedule III.
The preliminary hearing was held partially to confirm the availability of representatives and witnesses who were selected to participate in the proceedings to appear in person at the DEA Hearing Facility in Arlington, Va., where the hearings will be held.
Witnesses seeking the opportunity to provide video teleconference (VTC) testimony must file a request with the OALJ no later than 2 p.m. ET on Dec. 13, "The Homework Date," according to the ruling.
Any attorney or representative scheduled to present a witness (or seeking to cross-examine an opposing witness), however, must appear in person on their scheduled date, even if their witnesses will be appearing via VTC. “Failure to appear, in the absence of good cause and granted by the tribunal in advance, will result in forfeiture of the opportunity to present a witness as well as the opportunity to cross,” the ruling stated.
The hearing will begin Jan. 21, 2025, at 9:30 a.m. ET, with proceedings held Tuesday through Thursday of each week through March 6, with the exception of a week-long recess from Feb. 11 through Feb. 13.
The following is the schedule for hearing participants to present their cases, as outlined by the ruling:
Presentation Date Party Name
1/21/2025 Government
1/22/2025 Hemp for Victory (HFV)
1/23/2025 Cannabis Bioscience International Holdings (CBIH)
1/28/2025 Connecticut Office of the Cannabis Ombudsman (OCO); Ellen Brown; and The DocApp (collectively, OCO. et al.)
1/29/2025 National Cannabis Industry Association (NCIA)
1/30/2025 Village Farms International (VFI)
2/4/2025 The Commonwealth Project (TCP)
2/5/2025 Veterans Initiative 22 (VI22)
2/6/2025 Dr. Ari Kirshenbaum
2/18/2025 Tennessee Bureau of Investigation (TBI)
2/19/2025 International Association of Chiefs of Police (IACP)
2/20/2025 Drug Enforcement Association of Federal Narcotics Agents (DEAFNA)
2/25/2025 Smart Approaches to Marijuana (SAM) and State of Nebraska (NE) (collectively, SAM, et al.)
2/26/2025 Community Anti-Drug Coalitions of America (CADCA)
2/27/2025 Cannabis Industry Victims Educating Litigators (CIVEL)
3/4/2025 Dr. Kenneth Finn
3/5/2025 National Drug and Alcohol Screening Association (NDASA)
3/6/2025 Dr. Phillip Drum
The OALJ has set a date of Jan. 3, 2025, as the deadline by which all “parties must serve each other with a copy (electronic or hardcopy) of the documents noticed in their respective prehearing statements,” and any requests for subpoenas to obtain evidence must be filed.
The OALJ also directed the government to submit the full list of documentary evidence it intends to offer into the record by The Homework Date. According to a footnote in the Prehearing Ruling, “For reasons that are not altogether apparent, although directed to do so in the November 19, 2024 Standing Order, the Government did not supply the complete list of documentary evidence it intended to offer into the record. Instead, the Government noticed a few documents and indicated below the line that notice of more documents could be forthcoming upon a supplemental filing date. In fairness to the Government’s position, a supplemental prehearing statement date is not an uncommon feature of DEA administrative enforcement proceedings. There will be no supplemental prehearing statements in this formal rulemaking proceeding, and the Government is herein DIRECTED to furnish a complete list no later than The Homework Date.”
Public Comments ‘Unlikely’ to Be Received Into the Record
During the 60-day public comment period that followed the NPRM to reschedule cannabis, 43,564 comments were submitted. While the “comments play a vital role in the Administrative Procedure Act (APA) rulemaking process” and “must be carefully analyzed by the proponent agency [Drug Enforcement Administration (DEA)] and responded to in detail in the final rule published in the Federal Register … they are not admissible evidence at a hearing under the APA,” according to a footnote in the Prehearing Ruling. In addition, the ruling stated, “The Comments were never intended by Congress to be part of the APA hearing process.”
An analysis of the public comments by the Drug Policy Alliance—a nonprofit organization that works to address “the harms of drug use and drug criminalization through policy solutions, organizing, and public education,” according to the DPA’s website—found that 69.3% of the comments supported descheduling, decriminalizing, or legalizing marijuana at the federal level, while 42.4% mentioned the need for federal marijuana reform to advance racial justice or social equity, as Cannabis Business Times reported.
Controversy Surrounding the Hearings
The Dec. 2 preliminary hearing served as a procedural day for DEA Chief Administrative Law Judge John J. Mulrooney to address legal and logistical issues ahead of the official hearing where the DEA is to serve as a “proponent” of the DOJ’s NPRM on the merits of rescheduling. And the period leading up to the preliminary hearing has not been without controversy. A Nov. 18 legal motion—filed by Shane Pennington, a partner in the litigation department at Porter Wright Morris & Arthur LLP, on behalf of one of the hearing’s designated participants, cannabis company Village Farms International—asserted the DEA has taken a one-sided approach in favor of prohibitionists, as well as colluded with specific prohibitionists, ahead of the official hearing, as Cannabis Business Times reported. Both the DEA and prohibitionist group Smart Approaches to Marijuana (SAM) denied the accusations.
RELATED:
· Smart Approaches to Marijuana Responds to Claims It Colluded With DEA
· DEA Denies Collusion Allegations Ahead of Cannabis Rescheduling Hearing
The motion also intended to disqualify and remove the DEA as a “proponent” of the proposed rescheduling rule in the ALJ hearing and replace the DEA with the DOJ. At issue in the motion was the fact that DOJ head Attorney General Merrick Garland signed the NPRM, not DEA Administrator Anne Milgram; the DEA head is historically the one who would sign a proposed rule regarding drug rescheduling. The absence of Milgram’s signature raised red flags earlier this year about the agency’s position on cannabis rescheduling.
The DEA’s position on rescheduling continues to remain unclear, even to Mulrooney. At the outset of the Dec. 2 preliminary hearing, Mulrooney asked DEA Deputy Section Chief James J. Schwartz—the agency’s lead counsel: “What’s your position? Are you arguing in support of your agency’s rule?”
Schwartz’s reply—“We are the proponent of the rule, absolutely, yes, your honor”—was perceived as “concerning” by Matthew Zorn, partner at Yetter Coleman LLP, who is representing three designated participants in favor of rescheduling cannabis. Zorn raised his concerns during the preliminary hearing, saying, “I think I have concerns about the government being the proponent of the rule, even just hearing today where your honor asked if they supported the rule, and their response was they’re the ‘proponent’ of the rule,” Zorn said. “Proponent just means they’re proposing the rule. It does not mean they’re supporting the rule, and I thought that question and answer was a little concerning for me. … I still don’t know if the government is supporting the rule.”
Law360 reported that “The Drug Enforcement Administration on Monday [Dec. 2] affirmed it was acting as the proponent of a proposal to loosen federal restrictions on marijuana, the administrative law judge said supporters of rescheduling would not get an opportunity to cross-examine DEA witnesses.”
Read more of CBT’s coverage of cannabis rescheduling here.
