DEA Files Final Schedule III Brief, Challenges Witness Credibility

DEA Defends HHS Reliance, Attacks Expert Qualifications

The DEA's closing brief dedicates more than 80 pages to discrediting the qualifications and testimony of witnesses who oppose rescheduling or argue for descheduling entirely. According to the filing submitted to the Office of Administrative Law Judges, the agency characterizes most opposition experts as lacking relevant pharmacological credentials or relying on outdated research methodologies. The brief names 14 specific witnesses whose testimony the DEA asks Judge Mulrooney to disregard or assign minimal weight.

Here's the cleanest read on the DEA's strategy: the agency is attempting to narrow the evidentiary record to HHS's August 2023 scheduling recommendation and the FDA's five-factor analysis, both of which support Schedule III placement. The DEA argues that it's statutorily bound to defer to HHS on medical and scientific determinations under the Controlled Substances Act, a position that has drawn sharp pushback from state attorneys general and industry groups throughout the proceedings.

The brief dismisses testimony from witnesses affiliated with Smart Approaches to Marijuana and several addiction-medicine physicians who testified that cannabis meets Schedule I criteria due to high abuse potential and lack of accepted medical use. These witnesses applied pre-2016 FDA guidance on abuse liability rather than the current framework, the DEA counters, rendering their conclusions legally irrelevant.

State-Licensed Programs Cited as Evidence of Accepted Medical Use

The DEA's brief points to 38 operational state medical cannabis programs as dispositive evidence that marijuana has a currently accepted medical use in treatment in the United States, one of the five factors required for Schedule III placement. The agency argues that the existence of state-regulated physician recommendations, patient registries, and dispensary systems satisfies the "accepted medical use" standard even in the absence of FDA approval for a cannabis-derived drug product.

This represents a significant shift from the DEA's historical position. In previous scheduling reviews in 2001, 2006, and 2016, the agency held that only FDA-approved medications could establish accepted medical use. The 2026 brief explicitly overrules that framework. It cites the HHS recommendation's conclusion that widespread state physician involvement constitutes acceptance within the medical community.

Twenty-two pages rebut testimony from witnesses who argued that state programs don't meet the five-part Linder test for accepted medical use, which requires adequate and well-controlled studies published in peer-reviewed journals. The DEA counters that the Linder standard isn't binding in scheduling proceedings and that Congress didn't intend the CSA's medical-use criterion to be synonymous with FDA approval.

Abuse Potential Analysis Leans on HHS Eight-Factor Review

On the question of abuse potential, the DEA's brief relies almost entirely on the HHS eight-factor analysis, which concluded that cannabis has a lower potential for abuse than Schedule I or II substances but higher potential than Schedule IV or V drugs. The agency argues that this finding is entitled to controlling weight and that opposing witnesses failed to rebut the specific epidemiological data and pharmacokinetic studies cited in the HHS recommendation.

The brief acknowledges that cannabis meets some criteria historically associated with high abuse potential, including widespread non-medical use and evidence of psychological dependence. But the relevant comparison isn't to unscheduled substances—it's to other controlled substances, particularly Schedule II stimulants and opioids. Cannabis presents a lower risk of fatal overdose, less severe withdrawal syndromes, and lower rates of emergency-department visits per user than drugs currently in Schedule II, the DEA asserts.

Several witnesses testified that the DEA can't lawfully place cannabis in Schedule III while it remains in Schedule I under international treaty obligations, specifically the 1961 Single Convention on Narcotic Drugs. The brief dismisses this argument in four paragraphs, stating that U.S. scheduling decisions are governed by domestic statute and that treaty compliance is a State Department function outside the scope of this proceeding.

What Happens Next in the Rescheduling Timeline

Judge Mulrooney now has 90 days from the close of the record to issue a recommended decision, which would place the deadline in mid-November 2026. That recommendation goes to the DEA Administrator, who has final authority to adopt, modify, or reject the ALJ's findings. If the Administrator moves cannabis to Schedule III, the rule would be published in the Federal Register and take effect 30 days later unless challenged in federal court.

Any party to the administrative proceeding can petition for review in the U.S. Court of Appeals for the D.C. Circuit within 60 days of a final rule's publication. Legal observers expect challenges from both sides: states and advocacy groups opposing rescheduling on treaty and public-health grounds, and industry groups arguing that the evidence supports descheduling or at minimum Schedule IV placement.

For operators, the stakes are straightforward. Schedule III placement would preserve state-legal markets while eliminating the 280E tax burden that currently prohibits cannabis businesses from deducting ordinary business expenses. It wouldn't, however, resolve the federal-state legal conflict or open access to traditional banking and capital markets. Both require congressional action.

Watch for this next signal: whether Judge Mulrooney's recommendation tracks the DEA's framing or credits any of the opposition testimony the agency sought to exclude. For background on the full rescheduling process and prior procedural milestones, see the CannIntel topic hub on DEA Schedule III rescheduling.