The historic hearing scheduled to examine how marijuana is classified under federal law that could have potentially moved it into Schedule III of the Controlled Substances Act has been postponed indefinitely.

The DEA’s Chief Administrative Law Judge (ALJ) Mulrooney recently granted a request for leave to file an interlocutory appeal, resulting in the cancellation of the merit-based hearing and effectively pausing the proceedings for at least three months. With a new administration being sworn in imminently and a new DEA Administrator who has yet to be selected, future action remains uncertain.

The movants (Village Farms International, Hemp for Victory, Office of the Cannabis Ombudsman of Connecticut, Ellen Brown [Massachusetts Cannabis Advisory Board], and My Doc App) behind the request were Designated Participants (DPs) without standing who purport to be pro-rescheduling, despite the fact that their motion will require operators to continue paying the exorbitant tax rates that 280E imposes and has galvanized prohibitionists.

The interlocutory appeal was filed in an attempt to remove the DEA as the proponent of the rescheduling rule due to evidence the agency was biased against cannabis and had engaged in communications with prohibitionist group Project SAM and other opponents outside of the legal process. 

While we agree that the DEA was unsurprisingly not free from bias, NCIA did not subscribe to this strategy because removing the DEA from its own administrative court was never a viable option and would have only resulted in delay or perhaps the end of the rescheduling process. 

As the only pro-cannabis party granted standing in these proceedings, we are very disappointed in this unfortunate turn of events initiated by parties without legal standing.

“We believe this to be an ill-conceived strategy that benefits no one but the prohibitionists seeking to hinder reform,” said NCIA CEO & Co-founder Aaron Smith. “Our members need rescheduling and tax relief now, and we remain committed to advancing these reforms through whatever means available in the weeks and months ahead.”

On May 21, 2024, the U.S. Department of Justice (DOJ) proposed to reschedule cannabis from Schedule I of the Controlled Substances Act (CSA) to Schedule III of the CSA. Schedule III drugs have a lower risk of dependence, and the rescheduling could bolster positive perceptions of cannabis’ medical and therapeutic benefits. The U.S. Food and Drug Administration’s medical and scientific review and rescheduling recommendation to the DOJ stated that cannabis has legitimate medical benefits. While rescheduling cannabis to Schedule III will not make cannabis legal on a federal level, it will provide cannabis business tax relief on a state level and will provide scientists with greater access to cannabis for study and potential drug development.

In the United States, medical use of cannabis is legal in 38 states, four U.S. territories, and the District of Columbia (D.C.). Recreational use of cannabis is legal in 24 states, three U.S. territories, and D.C.

A preliminary hearing about the DOJ’s proposal to reschedule cannabis occurred on December 2, 2024. Administrative Law Judge John J. Mulrooney issued a Prehearing Ruling on December 4, 2024, setting the dates for evidentiary hearings early next year. Judge Mulrooney stated in the Ruling that the purpose of the hearings would be to “receive factual and expert opinion testimony regarding whether marijuana should be transferred to Schedule III under the CSA.”

The hearings will start on January 21, 2025, and are expected to wrap up on March 6, 2025.