Did the DEA rig marijuana rescheduling process?

Longstanding suspicions that the U.S. Drug Enforcement Administration is adamantly opposed to marijuana rescheduling – and weighted a public process to ensure it could reject moving the drug from Schedule 1 to Schedule 3 under federal law – are confirmed by agency decisions made public during an ongoing lawsuit.

At least, that’s the allegation made in a Feb. 17 federal court filing by a group of doctors who were shut out of the rescheduling process.

According to DEA documents made public in as part of a lawsuit brought by Doctors for Drug Policy Reform (DDPR), an organization of pro-cannabis research medical professionals, the federal drug agency:

• Considered a total of 163 applicants.
• Selected only 25 based on still-unknown criteria.
• Rejected participation requests outright from New York and Colorado officials, which supported rescheduling.
• Attempted to aid almost a dozen opponents of marijuana rescheduling.

It’s the fullest disclosure to date of the DEA’s actions during the marijuana rescheduling process.

“It confirms what we thought,” Dr. Bryon Adinoff, a Colorado-based addiction psychiatrist, academic and president of the DDPR, told MJBizDaily.

The DDPR’s court action – first filed in November – seeks to compel the DEA to redo its witness-selection process or, failing that, to at least make the agency explain its actions.

That matter, filed by attorney Austin Brumbaugh of the Houston-based Yetter Coleman firm, is still pending in the U.S. Court of Appeals for the D.C. Circuit.

Part of the DDPR’s objective was to determine if the DEA’s process “was fixed,” Adinoff said.

“And it appears to be,” he added.

Adinoff believes pausing the process or forcing a restart are both preferable to seeing it through to the foregone conclusion of a rescheduling rejection.

“We’re better off arguing the case where we are now than going forward and having it not work in our favor,” he said.

Marked from the beginning

Adinoff’s allegations are the latest – and loudest – accusations of bias against the DEA.

A separate appeal that also alleges DEA bias and seeks to remove the agency as rescheduling arbiter is pending.

Changing marijuana’s status under federal law would provide long-sought tax relief to legal plant-touching businesses in the $32 billion U.S. cannabis industry – and, it’s believed, encourage Congress to pursue other MJ reforms stalled in Washington, D.C.

At least some observers in Washington, D.C., believed the DEA would approve the finding that marijuana has a “currently accepted medical use,” a conclusion first arrived at in August 2023 by the Department of Health and Human Services (HHS).

That belief was buoyed by a September 2023 analysis by the Congressional Research Service that found the DEA acknowledged in 2020 that it is “bound by law” to follow recommendations on matters of health and science from other federal agencies.

But doubts about the DEA’s evenhandedness concerning the federal prohibition of marijuana appeared almost immediately after the Justice Department in May 2024 published its proposal to move the drug from Schedule 1 to Schedule 3 of the Controlled Substances Act.

Footnotes in an April 2024 memo from the DOJ’s Office of Legal Counsel show that the DEA argued internally against rescheduling marijuana and disputed the new standard the HHS used to determine “currently accepted medical use.”

Exactly what the DEA told the Office of Legal Counsel is unknown.

‘Most consequential’ DEA decision ‘ever’

Begun in October 2022 by former President Joe Biden, marijuana rescheduling “is likely the most consequential rulemaking DEA has ever attempted,” a group of former DEA administrators told the agency in a letter last summer. The letter also was released as part of the lawsuit.

But “the most significant relaxation of narcotics restrictions in the history of the CSA” is now on an indefinite hiatus pending the outcome of separate appeals – as well as whatever decisions President Donald Trump and his DEA administrator pick, Terrance Cole, might make.

Hearings before the DEA’s top administrative law judge, ordered in August by agency’s former administrator, Anne Milgram, were supposed to conclude March 6.

That potentially historic process was delayed indefinitely in January after the appeals.

In October, Milgram released a list of 25 participants chosen to give evidence and testimony in hearings before John Mulrooney II, the DEA’s chief administrative law judge, but she did not share her rationale or whether the participants were for or against rescheduling.

‘Secret’ and ‘improper’ process alleged

The document cache released by the DEA, spanning nearly 1,700 pages, shows a “secret selection process … guided by the improper aim of creating an evidentiary record that will allow the Agency to reject the proposed rule,” Adinoff’s filing claims.

While the DEA rejected bids by New York and Colorado officials to participate in the rescheduling process, the court documents show that the agency did select a representative of cannabis patients in Connecticut, a choice Adinoff called “nonsensical.”

The Connecticut representative later dropped out.

The DEA also sent “self-styled ‘cure letters’” to 12 participants.

Such letters are separate, individually tailored requests for “additional information establishing that you are ‘a person adversely affected or aggrieved by the proposed rule,’” according to copies of the letters attached in the court documents.

That’s the standard under federal law that must be met in order to participate in the administrative rescheduling process.

However, the lawsuit notes, of those 12 letters, nine were sent to parties “strongly against the proposed rule.”

Only one “cure letter” was sent to a party that turned out to be a supporter – another government entity, the University of California, San Diego’s Center for Medicinal Cannabis Research (CMCR).

After receiving more information from the CMCR – including that it supported the rule – the DEA ultimately rejected the application without explanation.

The CMCR’s director, Dr. Igor Grant, did not respond to MJBizDaily requests for comment.

‘Strong evidence’ of DEA bias

The DEA’s actions add up to “strong evidence that the Agency acted with an impermissible purpose of creating an evidentiary record supporting its preferred outcome – rejection of the proposed rule,” the lawsuit claims, in part.

Other observers and rebuffed participants contacted by MJBizDaily agreed.

“I don’t know that I expected a fair process or outcome,” said Cat Packer, the director of drug markets and legal regulation at the New York-based Drug Policy Alliance and a distinguished cannabis policy practitioner in residence at Ohio State University’s Drug Enforcement and Policy Center.

Packer also attempted to participate in the hearings but was rejected.

It “was pretty clear when the proposed rule (from the HHS) came out” in May 2024 that the DEA didn’t want to reschedule marijuana, she said.

And there’s little to suggest that the DEA’s attitudes have changed under Trump, Packer added.

“This is the DEA’s game,” she said, “and they get to make the rules.”

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