The cannabis industry’s indefinite wait for federal marijuana rescheduling – and tax relief for all plant-touching businesses – will stretch at least a few weeks longer.
In response to a request from marijuana reform’s foes, the U.S. Drug Administration’s top administrative law judge will delay a decision on reclassifying all marijuana as a Schedule 3 drug until next month at the earliest, according to a Tuesday order.
Since the conclusion of historic hearings in July, DEA Chief Administrative Law Judge Derek Julius has been mulling how to advise the Justice Department to proceed on the White House’s executive order that would see federal restrictions on all marijuana downgraded.
What is the status of the federal marijuana rescheduling process?
State-licensed medical cannabis has been a Schedule 3 drug since April, but moving all marijuana as defined under federal law would unlock federal tax relief for adult-use operators. It would also mean tax relief for hemp operators that no longer comply with the Farm Bill after a looming Dec. 11 deadline.
Julius is not operating under any set deadlines, and Attorney General Todd Blanche, a staunch ally of President Donald Trump, is not required to follow his ruling.
Cannabis reform’s foes have so far unsuccessfully challenged marijuana rescheduling in court.
But this latest hiccup comes after a federal Government Accountability Office analysis found the DEA and the Food and Drug Administration “could improve their… policies” around how drugs are classified.
Why is federal marijuana rescheduling delayed?
The GAO on Sept. 23 identified “gaps” in DEA and FDA policies around the scheduling process, including “specifying how… staff are to conduct evaluations.” The GAO report analyzed 208 scheduling actions, not just cannabis.
Rescheduling’s foes pounced on the GAO report.
On Sept. 28, three of the parties that participated in the summer rescheduling hearings – DUID Victim Voices, a physician named Kenneth Finn, and the National Drug and Alcohol Association – asked Julius to admit the GAO report into the record while “how it impacts these proceedings, if at all” is determined.
On Tuesday, Julius imposed a temporary stay and asked the Trump administration to file a response by Oct. 13.
“This tribunal finds merit in this argument that, if the record were to be extended to also include the GAO Report, a stay would be warranted to await briefing on it,” Julius wrote.
What were the problems with the federal cannabis rescheduling process?
For many years, the DEA used a five-part test to determine whether a drug has a “currently accepted medical use” in the U.S.
With cannabis, the Department of Health and Human Services instead used an additional two-part test to reach the August 2023 finding that cannabis met the definition of a Schedule 3 drug.
That two-part test came up during the summertime hearings, in which FDA officials acknowledged that cannabis would not have been reclassified under the older five-part test.
Cannabis reform’s opponents celebrated.
“This is precisely why we have opposed rushing marijuana rescheduling,” Carla Lowe, the president of Americans Against Legalizing Marijuana, said in a statement.
“When the government’s own independent watchdog identifies significant gaps in the procedures used to evaluate and schedule controlled substances, the appropriate response is not to push ahead.”
“It is to stop, examine the evidence and make certain that public health and science—not politics or commercial interests—drive the decision.”
