DEA, Anti-Marijuana Groups File Final Briefs in Rescheduling Hearing

Hearing Record Now Complete

The final-brief deadline marks the close of the evidentiary phase of DEA's rescheduling proceeding. Administrative Law Judge John Mulrooney now holds the complete record and is expected to issue a recommended decision to DEA Administrator Anne Milgram in the coming months. Under 21 C.F.R. § 1316.67, Mulrooney's recommendation isn't binding but carries procedural weight in the agency's final determination.

DEA opened the formal hearing process in May 2026 after the Department of Health and Human Services recommended in August 2023 that cannabis be rescheduled based on a scientific review mandated by President Biden. The proceeding has drawn more than 40,000 public comments. It's also pulled in formal participation from industry groups, medical associations, and anti-legalization advocates.

DEA Defends Schedule III Classification

DEA's final brief argues that cannabis meets the statutory criteria for Schedule III under 21 U.S.C. § 812(b)(3). The agency cited HHS's conclusion that marijuana has a currently accepted medical use in treatment in the United States and a lower abuse potential than Schedule I or II substances. DEA emphasized that the Controlled Substances Act requires it to accept HHS's medical and scientific findings as binding.

Rescheduling wouldn't legalize cannabis under federal law, the brief noted. Schedule III substances remain controlled, require DEA registration for manufacturing and distribution, and are subject to federal criminal penalties for unauthorized possession and trafficking.

Opposition Groups Challenge Medical-Use Finding

Smart Approaches to Marijuana and other anti-legalization groups filed briefs disputing HHS's determination that cannabis has accepted medical use. SAM argued that the FDA approval standard—adequate and well-controlled studies demonstrating efficacy—hasn't been met for whole-plant marijuana. The group pointed to FDA's 2006 inter-agency advisory stating that smoked marijuana has no currently accepted medical use.

Opponents also challenged HHS's abuse-liability analysis. They argued that rising cannabis use disorder diagnoses and emergency-department visits contradict the finding of lower abuse potential relative to Schedule II drugs like oxycodone and fentanyl.

Industry Intervenors Push for Descheduling

The U.S. Cannabis Council and Coalition for Cannabis Scheduling Reform filed joint briefs urging Mulrooney to recommend full removal of marijuana from the CSA schedules. The groups argued that the eight-factor analysis under 21 U.S.C. § 811(c) supports descheduling, not merely rescheduling to Schedule III. They cited state-legal markets operating in 38 states and the absence of international treaty obligations under the Single Convention on Narcotic Drugs that would require federal control.

Tax implications matter here. Rescheduling to Schedule III would eliminate Internal Revenue Code § 280E disallowances for state-licensed operators, unlocking an estimated $1.8 billion in annual federal deductions across the industry.

Timeline and Next Steps

Mulrooney has no statutory deadline to issue his recommendation, but DEA procedural norms suggest a decision within 90 to 180 days of the final-brief deadline. Once issued, the recommendation goes to Administrator Milgram, who may adopt, modify, or reject it in a final agency order. That order is subject to judicial review in federal circuit court under the Administrative Procedure Act.

For full background on this process, see the CannIntel topic hub on DEA rescheduling. If Mulrooney recommends Schedule III and DEA adopts that recommendation, the rule would take effect 30 days after publication in the Federal Register unless a reviewing court issues a stay.