It’s been a wild week in the rulemaking around marijuana rescheduling, to say the least. I’ve started writing about it a couple of times, only to be whipsawed by filings, rulings, prominent hot takes, prominent rebuttals, and more. All while trying to do my real job here at the firm.

Below are my thoughts on the state of this terrible pageant, in FAQ format.

What is even going on right now?

Let’s start with the procedural posture. Marijuana rescheduling is mired in an administrative rulemaking process, whereby the Drug Enforcement Administration (DEA) is the hapless, cynical “proponent” of a proposed Department of Justice (DOJ) rule.

Specifically, in May of 2024, DOJ appointed DEA to carry its water on moving marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA). DOJ’s recommendation takes the form of a Notice of Proposed Rulemaking (NOPR). The Notice was issued because President Biden, in October of 2022, directed the Department of Health and Human Services (HHS) to revisit the Schedule I status of marijuana. HHS did so in collaboration with its downstream agency, FDA, and recommended Schedule III. DOJ then proposed the rule.

Fast forward to this week. Midway through the rulemaking process, DEA Chief Administrative Law Judge John J. Mulrooney, II, issued an order on Monday, January 13th, cancelling the merit-based proceedings that were set to begin on Tuesday, January 21st, and granting an interlocutory appeal. The Judge so ruled on a motion by a small but steely crew of pro-Schedule III witnesses, who were selected by DEA to testify in the proceeding. This intrepid crew is led by Village Farms, International, Inc. (Let’s call them the “Villagers”.)

Judge Mulrooney’s order agitated the internet cesspit of cannabis law discourse, mightily. Certain people were quite upset with the Villagers, while others rushed to their defense. More on that below.

But what did the Judge actually say?

The Judge said several remarkable things, the likes of which we don’t often hear in administrative proceedings. Alas I cannot examine them all in this small space. However, most prominently, His Honor reprimanded DEA for “unprecedented and astonishing defiance” of an evidential directive. He also characterized DEA’s bad behavior as especially, unusually bad, “even among the numerous extraordinary and puzzling actions taken thus far by the Government during the course of this proceeding.”

Further, he cited the Villagers’ allegations against DEA that:

“demonstrate a puzzling and grotesque lack of understanding and poor judgment from high-level officials at a major federal agency with a wealth of prior experience with the [Administrative Procedure Act].”

As someone who used to go to court, I can tell you that when you write things like that, it’s a lot of fun to have the judge repeat them. Finally, Judge Mulrooney explained that he will consider sanctions against DEA, which, woah!

How long is the delay?

It’s going to be at least three months, friends. Could be more. And there are further developments that could distend this already sorry state of affairs.

Foremost among them are imminent changes to DOJ and DEA personnel with the incoming Trump administration; and the related question of whether that administration will weigh in on rescheduling one way or another. As Trump’s Attorney General, Matt Gaetz would have been great for Schedule III prospects, given his private love of controlled substances, and his public statements on marijuana reform. Pam Bondi, well, maybe not so much. As to Trump, the man himself endorsed rescheduling on the campaign trail, for whatever that is worth.

Is the hearing cancellation good overall for Schedule III prospects?

In the long term, I believe that it is. Rulemaking is the process of making a record. The process, as well as its result, is subject to litigation and appeal. For this reason, you want a good record.

Interlocutory appeals like the Villagers’ are seldom granted, but the Judge granted this one due to DEA’s flagrant disrespect for the rulemaking process — of which it is proponent, no less! Judge Mulrooney is both making and protecting the record, and guarding against some later appeal based on the fact that DEA’s shithousery tarnished that record.

The Judge will soon examine allegedly inappropriate ex parte communications by DEA with prohibitionist parties, evidentiary dilemmas, and other unsavory matters that were entirely avoidable. Expect more fireworks to come.

Why is the cannabis industry divided over the hearing cancellation?

Many people feel that this cumbersome and essentially political process could come to a halt, owing to excessive delay. It’s making them nervous.

An attorney for the National Cannabis Industry Association (NCIA) — who, like me, is not an administrative litigator – lamented that Judge Mulrooney’s order arises from a “procedural sideshow” caused by the Villagers. The NCIA — which has never been able to move the needle on rescheduling (or much of anything) — now argues that the Villagers, although pro-Schedule III, are undermining Schedule III by litigating the rulemaking.

The charge was not well taken. The Villagers replied that their advocacy is vital to ensure a balanced record and rulemaking, and that it is DEA, not them, which has imperiled Schedule III. The Villagers have a strong ipso facto argument at this point – Judge Mulrooney granted the interlocutory appeal, after all.

I’m not going to summarize the arguments of either side further, but you can read the NCIA attorney’s charge here, and the Villagers’ response here. Or, you can watch attorney Shane Pennington with an absolute fireball of an interview here. (Shane is the administrative litigator representing Village Farms.) I’m with the Villagers.

Is the Judge being fair?

I think he is. He is paying attention, and he’s smart, and he has ruled quickly and decisively throughout the process. Generally speaking, Judge Mulrooney’s rulings have been evenhanded. To that point, we’ve also seen him take the Villagers to task throughout the proceedings, including on big-ticket items, such as their demand that DEA be removed as proponent in this rulemaking. Overall, the Judge is in a difficult position; but he’s certainly working hard.

If the Villagers didn’t screw this up, who did?

Do you have a couple of hours? I’ll start from the top and try to be brief about it.

Joe Biden screwed up

First, Biden screwed up by putting us into an administrative process to reschedule marijuana, back in October of 2022. I have been saying and writing this consistently throughout.

Remember: in the 2020 campaign, Biden promised to “decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions.” He didn’t do that, or even give it a shot– including when his party had control of Congress. Last year, when he announced his bid for re-election, I graded him a gentleman’s “C” for his cannabis policy efforts. And I again criticized him for “passing the buck with rescheduling, putting us on an uncertain, circuitous path.”

If Biden didn’t want to deal with Congress, he also could have leaned on Merrick Garland, as Attorney General, to commence rescheduling proceedings. He didn’t do that, either.

DOJ and Merrick Garland screwed up

DOJ screwed up. Merrick Garland screwed up. Here, it’s important to understand that the NOPR provides that DOJ itself will issue the final rule. Garland himself signed the NOPR in his official capacity as Attorney General.

All of that was high and tight, because the CSA “vests” the Attorney General with the authority to “schedule, reschedule or decontrol drugs” (21 U.S.C. 811(a)). The Attorney General has traditionally delegated that authority to the DEA administrator (28 CFR 0.100). However, the Attorney General also retains the authority to schedule drugs under the CSA in the “first instance” (28 U.S.C. 509, 510).

Garland should have done that. Instead, he kicked this down to DEA, a body which has shown repeated disdain for law and judicial orders— as I pointed out the very day that HHS made its rescheduling recommendation. Garland’s decision also stirred up a hornet’s nest of tedious legal arguments around delegation, whether the DEA should be the proponent here, etc.

DEA and Anne Milgram screwed up

Let me count the ways.

The NOPR sought submissions from “interested persons” desiring to participate in the hearing. “Interested Persons” is defined in 21 CFR 1300.01 as “any person adversely affected or aggrieved by any rule or proposed rule issuable” under 21 USC 811 (my italics). You really have to squint to see how the Villagers and others might be adversely affected by a move to Schedule III. The same can be said of many opposing party witnesses selected by DEA. So why did DEA invite them?

Ultimately, Mulrooney permitted the inclusion of all of these witnesses back in November, partly because DEA selected them, and partly based on His Honor’s consideration that their participation would “meaningfully assist the decisionmaking.” That might be true, although the Schedule III naysayers and yeasayers will likely offer trucksfull of useless, duplicative testimony. So again, why have witnesses in the first place?

Milgram and DEA ostensibly wanted a hearing because marijuana rescheduling is a matter of public import. But a hearing wasn’t necessary. In fact, none of this was really necessary. As I pointed out back when this goat rodeo commenced, DEA could have issued an Interim Final Rule, immediately, putting marijuana on Schedule III last year. (DEA does this all the time, by the way, including with hemp and many other things.)

I’m with the pro-Schedule III witnesses in that I have no faith in DEA. My colleagues have written on this blog since 2015 that DEA ought to be disbanded. I’m with them, at least in the sense that I don’t feel optimistic about DEA’s approach to the rest of these proceedings. How could anyone — regardless of who next sits in Milgram’s chair?

What’s going on in parallel proceedings?

Unless you are even more in the weeds on this stuff than someone like me (in which case, I’m sorry), I don’t think parallel proceedings are worth your attention. However, for completion:

FOIA litigation

Relentless DEA foe Matt Zorn recently sued DEA over in the D.C. Circuit on a FOIA request. He sought an order requiring DEA to immediately turn over certain emails and communications which may demonstrate DEA’s contempt for marijuana rescheduling and the rulemaking process, and collusion with prohibitionists.

The court ruled against his request for a preliminary injunction on January 6. The ruling was not particularly surprising – injunctions are tough to get — and that case isn’t over. It could be mooted at some point, though.

Excluded party litigation

Out in the Western District of Washington, DOJ told a federal court on January 15th to pause a lawsuit by Panacea Plant Sciences challenging the rescheduling process. This follows on Judge Mulrooney’s earlier denial of the plaintiff’s request to postpone the rescheduling hearing over “improper blocking” of witnesses.

Both Panacea and DOJ now agree that the litigation should be paused, because the Mulrooney granted the interlocutory appeal and canceled next week’s hearings. So this one’s on ice for now, too.

I am still hopeful for Schedule III

Friends, nothing is ever easy in cannabis.

In the narrow context of this rulemaking, it really comes down this: a bunch of people, many of them law enforcement officials, are arguing to a pretty smart Judge that they know better than HHS (who are scientists, doctors, etc.) about the medical benefits and harms of marijuana.

HHS made an exhaustive, 250 page finding that marijuana has current accepted medical use and doesn’t belong on Schedule I. And, while the CSA is clear that while DOJ maintains final authority to reschedule marijuana, it is also clear that HHS’ recommendations “shall be binding … as to [] scientific and medical matters.”

So let’s see if DEA can actually un-ring this bell, assuming that’s the actual motive. I don’t think it can, especially while being exposed by the Villagers, reprimanded by its own administrative law judge, and generally held to account.

__________

For more in this series, check out the following posts:

The landscape of cannabis regulation in the United States has been a contentious and evolving issue for decades. As public opinion shifts and more states legalize cannabis for medical and recreational use, the question of how cannabis is classified under federal law remains a significant hurdle. One of the most anticipated developments in this arena was the upcoming hearings regarding the rescheduling of cannabis by the Drug Enforcement Administration (DEA). However, recent events have led to the cancellation of these hearings, raising critical questions about the future of cannabis policy, regulatory transparency, and the broader implications for stakeholders involved in the cannabis industry.

Background on Cannabis Rescheduling

Cannabis is currently classified as a Schedule I substance under the Controlled Substances Act (CSA), a category that includes drugs deemed to have a high potential for abuse and no accepted medical use. This classification has long been criticized by advocates, researchers, and medical professionals who argue that cannabis has therapeutic benefits and should be available for medical use without the restrictions imposed by its Schedule I status.

In recent years, there has been a growing movement to reevaluate this classification. Various studies have indicated potential medical benefits of cannabis for conditions such as chronic pain, epilepsy, and multiple sclerosis. Additionally, public sentiment has shifted significantly; according to recent polls, a majority of Americans now support legalization in some form. As a result, calls for rescheduling cannabis have gained momentum, leading to discussions within federal agencies about how to approach this complex issue.

The Role of the DEA

The DEA plays a crucial role in regulating controlled substances in the United States. Its authority includes enforcing drug laws and determining the scheduling of substances based on their potential for abuse and medical utility. In 2023, the DEA announced that it would hold hearings to consider rescheduling cannabis, an event that many viewed as a pivotal moment in U.S. drug policy.

The hearings were intended to gather evidence and testimony from various stakeholders, including medical professionals, researchers, law enforcement officials, and advocates for legalization. The outcome of these hearings could have far-reaching implications for how cannabis is treated under federal law and could pave the way for broader reforms at both state and national levels.

The Cancellation of Hearings

In a surprising turn of events, DEA Chief Administrative Law Judge John Mulrooney II announced the cancellation of the upcoming rescheduling hearings scheduled for January 21, 2025. The decision came after Village Farms International and Hemp for Victory filed a legal challenge against the DEA. Their motion alleged bias within the agency, claiming that there had been improper communications between DEA officials and anti-rescheduling advocates.

While Judge Mulrooney rejected the motion to remove the DEA from overseeing the hearings, he did grant an interlocutory appeal. This means that there will be a delay in proceedings for at least three months while the appeal is considered. The cancellation has raised alarms among advocates for cannabis reform who view it as another setback in the ongoing struggle to change federal cannabis policy.

Implications of Cancellation

1. Impact on Cannabis Reform Efforts

The cancellation of these hearings is likely to have significant ramifications for ongoing efforts to reform cannabis laws at both state and federal levels. Advocates argue that rescheduling is essential not only for medical access but also for reducing stigma associated with cannabis use. Without these hearings moving forward, momentum may stall at a time when public support for legalization is at an all-time high.

2. Legal Uncertainty

The legal challenge that led to the cancellation highlights issues of transparency and accountability within the DEA. Critics argue that such challenges could lead to prolonged legal battles that create uncertainty within the industry. For businesses operating in states where cannabis is legal, this uncertainty can hinder investment and expansion plans.

3. Political Considerations

The timing of this cancellation is particularly noteworthy given its proximity to changes in political leadership with the incoming Trump administration. Under previous administrations, there were significant shifts in drug policy; however, it remains unclear how a new administration might approach cannabis rescheduling. The cancellation may signal a more cautious approach from federal agencies as they navigate potential political pressures.

4. Public Health Concerns

The ongoing debate over cannabis scheduling also intersects with public health concerns. As more states legalize cannabis use—both medically and recreationally—there are increasing calls for research into its health effects. The cancellation of hearings may delay critical discussions about safety regulations, quality control measures, and public health initiatives aimed at educating consumers about responsible use.

Stakeholder Reactions

1. Advocacy Groups

Advocacy groups dedicated to cannabis reform have expressed disappointment over the cancellation. Many view it as an obstructionist tactic designed to maintain the status quo rather than engage with evolving public opinion and scientific research on cannabis’s benefits.

2. Industry Leaders

Leaders within the cannabis industry have voiced concerns about how this decision affects their businesses and investments. The uncertainty surrounding federal regulations complicates compliance efforts and may deter potential investors wary of entering a market still grappling with legal ambiguities.

 3. Medical Professionals

Medical professionals advocating for patient access to cannabis-based treatments are particularly concerned about delays in rescheduling discussions. They argue that patients suffering from various conditions should not be denied access to potentially beneficial treatments simply due to outdated regulations.

Looking Ahead: What’s Next?

As we look toward the future of cannabis regulation in America, several key factors will likely influence developments:

1. Ongoing Legal Challenges

The outcome of the interlocutory appeal will be critical in determining whether or not hearings will eventually take place. Legal challenges may continue to shape how federal agencies approach cannabis regulation moving forward.

2. Public Sentiment

Public opinion continues to shift toward favoring legalization; thus policymakers may feel increasing pressure to address these concerns through legislative action or regulatory changes.

3. State-Level Initiatives

As federal action remains uncertain, states may continue to lead on cannabis reform efforts independently. This patchwork approach could create further complications regarding interstate commerce and enforcement.

4. Research Initiatives

Despite setbacks at the federal level, research into cannabis’s medical applications is likely to continue growing through private funding or state-supported initiatives aimed at better understanding its benefits and risks.

Conclusion

The cancellation of the upcoming DEA hearings on cannabis rescheduling marks a pivotal moment in U.S. drug policy, carrying significant implications not only for advocates and industry stakeholders but also for societal attitudes toward drug regulation and public health initiatives concerning substance use; as stakeholders navigate this complex landscape filled with legal uncertainties and shifting political dynamics, it is evident that discussions surrounding cannabis are far from concluded, with ongoing advocacy efforts and evolving state-level policies addressing public health needs underscoring the necessity for cannabis reform, which remains a critical issue demanding attention from lawmakers, industry leaders, healthcare professionals, and the general public; ultimately, while this setback poses challenges for federal rescheduling processes, there is a sustained commitment among advocates to pursue comprehensive reforms aimed at ensuring safe access to cannabis while dismantling the stigmas associated with this controversial plant.

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Has the Cannabis Legalization Momentum Slowed Down?

https://x.com/twinkdefcon/status/1865985135675359392

https://x.com/PLegalization/status/1867301591633760730

As a long-time observer of cannabis policy reform, I’ve watched with fascination as public attitudes towards marijuana have undergone a seismic shift since the turn of the millennium. The once-radical notion of legal cannabis has transformed into a mainstream policy position, supported by a growing majority of Americans across the political spectrum.

The real watershed moment came in 2012 when Colorado and Washington boldly stepped into uncharted territory, becoming the first states to legalize cannabis for adult recreational use. It was like watching the first dominos fall in what would become a cascade of reform. Since then, we’ve witnessed an almost clockwork-like progression of legalization, with new states joining the green wave year after year, whether through medical programs or full recreational legalization.

But something feels different lately. For the first time in recent memory, we’re seeing significant speedbumps in what seemed like an unstoppable movement. The November elections saw two cannabis measures fail at the ballot box – a surprising departure from the steady march of progress we’ve grown accustomed to. Scrolling through my X feed (formerly Twitter), I’ve noticed a shift in the conversation too. There’s a palpable sense of uncertainty in the air, and it’s got me thinking: Has the momentum of cannabis legalization finally begun to slow?

As someone who’s dedicated years to understanding and documenting this movement, I can’t help but wonder what’s behind this apparent deceleration. Is it just a temporary setback, or are we witnessing a more fundamental shift in the landscape of cannabis reform? In this article, we’ll dive deep into these questions and explore what’s really happening with the legalization movement in America.

Let’s unpack this together and see where the evidence leads us.

After decades of following cannabis reform, I’ve noticed a subtle but significant shift in the digital discourse lately. Some voices on X (formerly Twitter) have been particularly vocal about their concerns:

“Has anyone else noticed that Cannabis Legalization has slowed down significantly in recent months? I’m wondering if we’ll see federal legalization in our lifetime.” – @CannabisWatchdog

“The momentum of legalization is dwindling. Not sure if it’s because of the upcoming elections or if there’s something else at play…” – @GreenPolicy365

As I scroll through my feed, I can’t help but notice a change in the tenor of cannabis conversations. While polling consistently shows that a solid majority of Americans still support legalization, there’s been an uptick in negative sentiment that can’t be ignored. Perhaps most surprisingly, I’ve even seen calls for “re-illegalization” of cannabis – though this premise is fundamentally flawed since cannabis has never been fully legal at the federal level in the first place.

What’s particularly interesting is the emergence of vocal opposition groups who seem determined to fight against full legalization with everything they’ve got. The November election results, where we saw two cannabis measures fail, might be seen as evidence of their growing influence. Though, to be fair, these defeats could simply reflect the intense focus on the presidential race, with cannabis reform taking a back seat to what many viewed as more pressing political concerns.

Still, these failures caught many of us off guard. In the cannabis reform community, there was a prevailing sense that these measures were “sure things” – their defeat served as a wake-up call that we can’t take continued progress for granted.

Yet, let’s keep perspective here. While the negative voices might be getting louder, they’re not necessarily becoming more numerous. Support for legalization remains robust across demographic groups, and the cannabis industry has established itself as a significant economic force. The genie, as they say, is out of the bottle.

What we’re likely witnessing isn’t so much a reversal as a recalibration. The path to reform was never going to be entirely smooth or predictable. The next few years will be crucial in determining whether this is merely a temporary slowdown or a more substantial shift in public sentiment. Either way, those of us who’ve been in this space for years know that the only constant in cannabis policy is change.

Looking at the broader cultural landscape, I’m starting to notice some familiar patterns emerging in the cannabis reform movement. While I don’t foresee a complete reversal of the progress we’ve made, I do anticipate a temporary slowdown until we see decisive federal action – specifically, Congress finally addressing cannabis prohibition head-on.

In the meantime, we should brace ourselves for an uptick in anti-cannabis rhetoric. This isn’t just speculation – it’s based on a fundamental understanding of how societal attitudes tend to operate. Like a pendulum, when public opinion swings hard in one direction, there’s almost always an equal and opposite reaction coming.

We’ve seen this play out recently with the “woke” movement. After several years of progressive ideas dominating the cultural conversation, 2024 has marked a noticeable shift in the opposite direction. High-profile religious conversions, successful boycotts of brands deemed “too woke,” and increasingly vocal opposition to certain ideological positions all signal this pendulum swing in action.

Traditionally, drug policy reform has been associated with liberal politics – though it’s worth noting that Democrats, despite their rhetoric, haven’t actually done much to fundamentally change our drug laws. Now, as we appear to be entering a more conservative period, the cannabis movement needs to adapt its strategy accordingly. With conservatives likely to hold significant power over the next four years, we need to frame legalization in terms that resonate with right-leaning voters and politicians.

Yes, we’ll face more resistance in this environment. But I see this as an opportunity rather than a setback. The conservative principles of limited government, personal freedom, and states’ rights align perfectly with cannabis reform – we just need to make that case more effectively. After all, what’s more intrusive than the government telling adults what plants they can or cannot consume in their own homes?

The facts are on our side. The war on drugs has been an expensive, destructive failure – something that even many conservatives now acknowledge. Studies consistently show that youth cannabis use has actually decreased in states with legal markets. These are points that should appeal to pragmatic conservatives who value evidence-based policy making.

So while the pendulum swings right, it’s time for the cannabis reform movement to speak the language of conservatism: emphasis on personal responsibility, smart regulation that keeps products away from kids while supporting legitimate businesses, and policies that reduce crime by undermining the black market. If we can frame legalization in these terms, we might find unexpected allies on the right side of the aisle.

Let me be clear to all my fellow cannabis enthusiasts: there’s no need to panic. In states that have already embraced legal cannabis, those rights aren’t going anywhere. And for those still waiting for reform? It’s not a matter of if, but when. The train of legalization might be slowing down, but it hasn’t jumped the tracks.

What we’re witnessing is simply a shift in the cultural winds, and like any good navigator, we need to adjust our sails accordingly. The cannabis movement needs to evolve its messaging to resonate with the changing political landscape. We need to emphasize how legalization aligns with conservative values – fighting drug cartels, protecting our youth through regulated markets, generating substantial tax revenue, and creating legitimate American jobs.

These aren’t just talking points; they’re proven outcomes in states with legal markets. When we focus on these practical benefits rather than ideological arguments, we find common ground with conservatives who might otherwise be skeptical of legalization. After all, what’s more conservative than supporting small businesses, creating jobs, and reducing government waste on failed prohibition policies?

With conservative voices set to dominate the national conversation over the next four years, the cannabis industry needs to be strategic and pragmatic. We need to build bridges, not walls, and demonstrate how regulated cannabis markets can achieve conservative policy goals more effectively than prohibition ever could.

For now, we’ll watch and wait to see how these cultural shifts play out. But one thing’s for certain – the cannabis reform movement isn’t going anywhere. We’re just learning to speak a different dialect of the same language of freedom and common sense.

What do you think about the future of cannabis legalization? Drop a comment below and let me know your thoughts on navigating these changing times.

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