Key Takeaways
- The DEA has announced a public hearing on the rescheduling of cannabis, due to be held on December 2nd in Arlington, Virginia.
- The hearing is intended to hear evidence and expert opinion on the proposal, following requests received via public comments.
- It probably won’t change the expected outcome, but it will almost certainly push the final decision into the term of the new president, whoever that may be.
Editor’s note (November 4, 2024): The rescheduling looks set to take even longer now following an announcement from Chief Administrative Law Judge John Mulrooney. This is because the DEA’s list of participants in the hearing didn’t note whether the participants supported or opposed the rule or how they qualify as “interested persons.” The formal hearing will now take place in January or February 2025, after the new president is inaugurated and possibly substantially changes current policy on cannabis.
Cannabis advocates were hit with unpleasant news last week when the DEA announced its intention to hold an administrative hearing on the proposed rescheduling.
After the public comment period generated an unprecedented 42,000-plus comments, the DEA announced that it will be holding a hearing on December 2nd, with the stated intention to “receiv[e] factual evidence and expert opinion regarding” the rescheduling. In all likelihood, this will delay the rescheduling until after the new president takes office.
So why the additional step? Is it likely to change anything? Here’s what to expect.
RELATED: Rescheduling of Cannabis: What the Experts Think
What Is Happening and Why?
The DEA is holding a hearing on December 2nd, 2024 at 9 am ET at the DEA hearing facility in Arlington, Virginia, according to the Federal Register announcement.
Back in May, the Department of Justice officially published the Notice of Proposed Rulemaking (NPRM) to shift cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA).
The public had 60 days to submit comments on the proposal, and according to the announcement, the DEA received “numerous requests” for a hearing on the topic. Smart Approaches to Marijuana is one example of a group that requested such a hearing.
The hearing is theoretically open to “any person adversely affected or aggrieved by” the proposed rule, provided they send in a notice of intention to participate by the end of the day (ET) on September 30th, 2024.
There are rules for what this must contain (and it’s worth checking the details if you want to participate), but the basics are that you have to tell them who you are and what you want to talk about.
Is This Normal? How Long Will Rescheduling Take?
Although some people were surprised – especially businesses hoping to reap the tax benefits as early as possible – this is an expected development given the public interest in and implications of this change.
Vince Sliwoski, partner at Harris Sliwoski, predicted this delay back in March, and others like Shawn Hauser, partner at Vicente, note that this process can take up to nine years. So far, the process has actually been moving quickly, but as Sliwoski notes, the “DEA has a lot of discretion to speed up or slow down this process.
From the Administration’s perspective, a slower process could help insulate its decisions, especially given all of the eyeballs on this thing.” Sliwoski adds that litigation is a “very real” possibility.
In short, yes this is frustratingly normal for such a process and it’s likely that it won’t be completed before the new president takes office in January 2025. Beyond that, it’s hard to estimate because of the prospect of litigation and the uncertainty surrounding the election.
Kamala Harris would likely continue the process, but as with many topics, Trump is hard to predict – republicans are generally more opposed than democrats but Trump recently endorsed legalization in Florida.
A Deep-Dive Into the Comments on the Proposal
One of the big factors in the decision to have a hearing is likely the sheer amount of interest in this topic.
Data analytics company Headset released an analysis of the comments received on the DEA proposal, and stressed that receiving over 42,000 comments on such a proposal is an unprecedentedly high number. DEA proposals rarely receive more than a couple of thousand comments, and this shatters the previous record of 38,000 on a 2020 proposal surrounding telemedicine.
But what did the comments say? Headset reports that only 7.6% of comments were against changing the schedule of cannabis, while 57% of comments called for complete descheduling. In fact, only 35.4% of respondents supported the move to Schedule III as is.
Headset notes that those who advocated for descheduling cited social justice concerns – i.e. the consequences of racially-biased enforcement – economic opportunities and personal liberty, while those opposed to any change stressed safety concerns and called for the protection of youth.
They drew specific attention to spikes in comments opposing the change which correlated with campaigning from groups against cannabis reform. In particular, they note that Smart Approaches to Marijuana issued a call to action a week before the deadline, and this led to the largest number of comments opposed to rescheduling received on a single day.
Conclusion: What Happens Next?
It’s likely that groups like Smart Approaches to Marijuana will be prominently featured alongside pro cannabis advocacy groups on December 2nd, and that both groups will largely hit on the same points they did in the comment period.
This all raises the question: how will verbal presentations of the same arguments make a difference? Are we expecting some new, bombshell studies to settle these issues in the coming three months?
When we spoke to Dr. Carrie Cuttler, Associate Professor at the Health and Cognition (THC) Lab at Washington University, she emphasized that: “I think the research showing cannabis does not fit the criteria for a schedule I drug has been around for decades. We have known for a long time that cannabis does have medical benefits and a rather low potential for abuse and dependence.”
The truth is, this is a big move that the DEA likely doesn’t feel so great about, and as Vince Sliwoski said, the hearing will help “insulate its decisions” from blowback by drawing out the process. The rescheduling will likely go ahead; it will just take longer than it needs to.