A recent analysis published by the U.S. law firm Vicente and authored by Neil Willner and Shawn Hauser discussed the key testimony, legal arguments, and procedural developments from the U.S. Drug Enforcement Administration (DEA) hearing on the proposed rescheduling of cannabis from Schedule I to Schedule III. In addition, it also reviewed the government’s evidence, the opposition’s arguments, and also the potential implications for the administrative review process and subsequent judicial proceedings.
Earlier in July, several days after the DEA hearing on the proposed rescheduling of cannabis, the U.S. government concluded its case, presenting testimony from FDA and clinical experts supporting rescheduling, while the opposition began presenting its case. The hearing focused on whether cannabis has a “currently accepted medical use” under the Controlled Substances Act, with opponents also raising administrative and procedural arguments for potential judicial review.
The U.S. federal government argued that cannabis meets the statutory criteria for rescheduling to Schedule III by presenting FDA and HHS scientific evaluations and clinical testimony supporting at least one currently accepted medical use and an abuse potential lower than that of Schedule I and II substances. However, opponents argued that HHS and the FDA departed from the longstanding five-part framework for determining currently accepted medical use (CAMU) by adopting a two-part test, laying the groundwork for a potential administrative law challenge. Although these arguments are unlikely to affect the current hearing, they are intended to support judicial review of any final DEA rescheduling decision.
Opponents argued that the variability of cannabis as a botanical product, including differences in composition, potency, and dispensing practices, undermines its qualification as having a currently accepted medical use, while the government maintained that standardization is not required for rescheduling under the Controlled Substances Act. Furthermore, pain emerged as the most contested of the three proposed accepted medical uses, with opponents challenging the evidence base, potential conflicts of interest, and the FDA’s evaluation of the literature supporting cannabis for chronic pain.
The National Drug & Alcohol Screening Association (NDASA) argued that rescheduling cannabis to Schedule III could remove it from federally mandated drug testing programs for safety-sensitive occupations unless additional federal rule-making is undertaken. Its testimony focused on workplace drug testing, transportation safety, and regulatory implications rather than the scientific evidence for currently accepted medical use. However, NDASA also acknowledged that employers could continue testing for cannabis under their own workplace policies, even if federal testing requirements changed.
The hearing continued with testimony from the remaining opposition witnesses, focusing on issues such as currently accepted medical use, abuse potential, and dependence profile. The hearings concluded July 15th, next the administrative law judge will issue a recommended decision before the DEA administrator makes a final determination, which may then be challenged through judicial review.
