DEA hints more marijuana rescheduling participants possible

The U.S. Drug Enforcement Administration could allow more participants to testify at upcoming hearings concerning marijuana rescheduling in addition to the initial 25 who were designated in October.

That’s according to a footnote in a Nov. 15 order, in which DEA Chief Administrative Law Judge John Mulrooney II rejected a veterans advocacy group’s attempt to join the hearings.

The previous day, the Veterans Action Council (VAC), an organization that supports cannabis access for military veterans, petitioned Mulrooney to request “status as an interested party” ahead of a scheduled Dec. 2 hearing.

The VAC had previously had requested to participate in the rescheduling hearings, but the group was not included on the list of 25 designated participants released Oct. 31 by DEA Administrator Anne Milgram.

“We feel that our previous denial of placement on the participants list, based upon our timely request submission, represents a clear error given our understanding of the law and this process,” the VAC’s Michael Krawitz wrote in its Nov. 14 petition obtained by MJBizDaily.

Group prefers Schedule 5 or descheduling

The veterans organization wants marijuana moved to Schedule 5 rather than Schedule 3, as the DEA has proposed, “if not descheduled entirely,” the petition requested in part.

Moving marijuana to Schedule 3 would solve plant-touching companies’ tax woes, as business would no longer be subject to Section 280E of the Internal Revenue Code.

Sellers of drugs in Schedule 5 – the least-restricted substances under the DEA’s purview – also are exempt from 280E, which applies only to Schedules 1 and 2.

Such drugs also are often available over the counter, without a doctor’s prescription.

Rescheduling’s critics note that Schedule 3 is also an inappropriate category for the $32 billion regulated legal marijuana industry.

Other Schedule 3 drugs are approved by the U.S. Food and Drug Administration and prescribed by doctors.

Appeal could be in play

In his Nov. 15 order, Mulrooney rejected the request, noting that because the VAC “was not included” on Milgram’s list, “no action can or will be taken on its request.”

However, Mulrooney seemed to leave the door open for DEA to allow other participants.

“That said, the issue may not be altogether settled,” Mulrooney wrote in a footnote citing case law, in which a court found a subpoena decision isn’t final until “an ultimate disposition of the case.”

In an interview with MJBizDaily on Monday, the VAC’s Krawitz said his organization is interpreting Mulrooney’s order positively.

“He didn’t shoot it down,” Krawitz said. “What he seems to be saying is, we can appeal.”

The VAC is weighing its next steps, Krawitz added.

It’s still uncertain how the marijuana rescheduling process will proceed.

The DEA published a proposal in May to move marijuana from Schedule 1 of the Controlled Substances Act to Schedule 3.

A few months later, Milgram indicated the matter would go before an administrative law judge in December.

Evaluating rescheduling participants

Most observers and invitees agree that the Dec. 2 hearing will determine whether participants have standing to participate in future hearings.

Those will likely be scheduled for January and February.

In order to participate, a party must demonstrate it is “adversely affected” by the proposal.

Other details are emerging, including another invited designated participant left off the contact list in Mulrooney’s recent order, which was first reported by Law360.

The American College of Occupational and Environmental Medicine will no longer participate, as the Illinois-based group did not submit a request brief demonstrating its standing by the Nov. 12 deadline, according to people familiar with the matter.

Another designated participant, Orlando, Florida-area oncologist Chad Kollas, invited to participate on behalf of the American Academy of Hospice and Palliative Medicine, has declined to proceed, MJBizDaily confirmed last week.

And, according to a contact list attached to Mulrooney’s order, five invited designated participants all share the same attorney, New Jersey-based David Evans.

Described as a “nationally recognized … cannabis adversary,” Evans represents:

• Counsel for the Cannabis Industry Victims Educating Litigators.
• Community Anti-Drug Coalitions of America.
• Phillip Drum, a licensed pharmacist who regularly speaks about marijuana legalization’s impact on driving.
• International Academy on the Science and Impacts of Cannabis, of which Drum is a member.
• National Drug & Alcohol Screening Association.

Chris Roberts can be reached at chris.roberts@mjbizdaily.com.