DEA, Attorney General Miss Deadline to Respond to 12 US Senators on Cannabis Rescheduling

The Drug Enforcement Administration (DEA) and Attorney General Merrick Garland missed a Feb. 12 deadline to respond to 12 U.S. senators regarding the DEA’s cannabis rescheduling process, multiple congressional sources confirmed with Cannabis Business Times.

Sen. Elizabeth Warren, D-Mass., spearheaded a Jan. 29 letter that she signed, along with 11 of her colleagues in the upper chamber, and sent to DEA Administrator Anne Milgram and Garland, who heads the Department of Justice.

The letter not only urges the DEA to completely deschedule cannabis from the Controlled Substances Act (CSA)—going further than rescheduling the plant—but the senators also requested that Milgram and Garland respond to six questions by Feb. 12 to “help the American people understand what steps the DEA is taking to act on HHS’s [U.S. Department of Health and Human Services] rescheduling recommendation.”

Warren’s office confirmed with CBT on Feb. 13 that the senator had yet to receive a response from the DEA. Also, district staffers from Sens. Cory Booker, D-N.J. and Alex Padilla’s, D-Calif., offices, as well as a staffer from one other signee’s office who spoke on background, confirmed that their senators, too, had yet to receive a response.

It is time for our federal government to join the 21st century and legalize marijuana.

— Elizabeth Warren (@ewarren) February 12, 2024

CBT also reached out to the DEA asking if its officials plan on responding to the letter and will update this article upon receiving clarity from the agency.

The first of six questions in the Jan. 29 letter inquires about the current status of, and the timeline for, the DEA’s review. This comes five months after the HHS determined that cannabis has a recognized medical value following conducting an eight-factor analysis and recommended to the DEA that the plant be reclassified from a Schedule I to a Schedule III drug under the CSA.

RELATED: Cannabis Rescheduling Document Details Rationale For Schedule III Recommendation

While Michael Miller, acting chief of the DEA’s Office of Congressional Affairs, wrote in a Dec. 19 letter to Rep. Earl Blumenauer, D-Ore., as first reported by Punchowl News, that the DEA is in fact conducting its review of the HHS rescheduling recommendation, the DEA has yet to offer further details into this review.

Notably, it’s anticipated that the DEA will eventually propose a rule to reschedule, which would then be followed by a 60-day public participation period for comment, according to Shane Pennington, partner at Porter Wright Morris & Arthur LLP. During this time, the DEA would also likely entertain requests for public hearings, Pennington previously told CBT.

The DEA would then write a final rule that must be published in the federal register for 30 days before becoming effective.

“The DEA and HHS should be fully transparent about the evidence relied upon in the course of their review processes,” the 12 senators wrote in the Jan. 29 letter. “The Biden administration has a window of opportunity to deschedule marijuana that has not existed in decades and should reach the right conclusion—consistent with the clear scientific and public health rationale for removing marijuana from Schedule I, and with the imperative to relieve the burden of current federal marijuana policy on ordinary people and small businesses.”

While the DEA has final authority to reschedule cannabis via the executive branch, Congress has the same authority to federally legalize cannabis and remove it from the CSA in the legislative branch.

But with the Senate’s failure to act on broad cannabis reform in past congresses—amid the House twice passing a legalization measure sponsored by Rep. Jerry Nadler, D-N.Y.—at least a dozen members in the upper chamber are now counting on the DEA to get the job done. And they want to be in the know during this process.

Here are the other five questions the 12 senators are also waiting on the DEA to answer:

1. What evidence does the DEA intend to consider in reaching its decision regarding the scheduling of marijuana?
• If the DEA believes clinical trials testing marijuana are necessary in order to change its scheduling, what is the DEA’s roadmap for developing clinical-trial evidence, in light of roadblocks to accessing funding for such studies?
2. In the course of this review, is the DEA still assessing cannabis’s medical use based on the five-factor test that the agency created for itself in 1992, which differs from HHS’s analysis?
3. Specifically, how (if at all) would the criminal enforcement of marijuana by the DEA change if marijuana were moved to another schedule in the CSA? Please provide an answer for Schedule II, Schedule III, Schedule IV, and Schedule V.
4. What specific steps has the DEA taken to ensure that its marijuana-related policies and programs, including its marijuana enforcement strategy, comply with Executive Order 13985 and 14091?
5. To what extent does the DEA’s evaluation of marijuana’s scheduling acknowledge or address the harms of cannabis criminalization and related collateral consequences, and racial disparities associated with federal marijuana enforcement?