DEA Asks Judge To Issue Subpoenas Forcing FDA Officials To Testify At Marijuana Rescheduling Hearings

The Drug Enforcement Administration (DEA) is asking an agency judge to approve subpoenas to compel Food And Drug Administration (FDA) officials to testify at upcoming hearings on the Biden administration’s marijuana rescheduling proposal.

Friday marked the “homework” deadline for the government and designated participants in the hearing proceedings to provide DEA Administrative Law Judge (ALJ) John Mulrooney with any additional materials about evidence, witnesses they plan call in the case and other matters.

DEA said in its filing that it “anticipates issuing subpoenas for testimony” from four FDA officials, despite the U.S. Department of Health and Human Services (HHS) previously advising the agency that it would not voluntarily participate.

DEA also said it will be introducing tens of thousands of public comments it received as part of the rulemaking process as evidence, even though the judge said in a prehearing ruling that such comments “are not evidence” and “cannot be,” admonishing the agency not to attempt to insert the submissions.

Mulrooney had said that “to attempt to foist a gargantuan mass of inadmissible comments on the tribunal risks the appearance (even if subjectively unwarranted) of a dilatory tactic inflicted on the trier of fact by the agency that represents itself as the proponent of the rule.”

DEA evidently did not agree with that assessment.

“The Government is offering the public comments to the [notice of proposed rulemaking] as evidence in this hearing in accordance with the statement made in the NPRM,” the agency said. “Due to the importance of having the public comments to the NPRM be admitted into evidence for consideration by the decision makers, but recognizing the volume of comments received by DEA to the NPRM, the Government seeks leave to file electronic copies of the comments into evidence, rather than paper hard copies.”

DEA had already previewed testimony from two agency officials who it selected as witnesses, but the latest filing additionally details what it expects from the four FDA staffers who will be subpoenaed.

“It is anticipated that these witnesses will be able to provide testimony and discuss the scientific and medical evaluations in the HHS Eight Factor analysis that is the basis for the Notice of Proposed Rulemaking, including the novel two factor test applied by HHS for determination of ‘currently accepted medical use,’” DEA said.

“The witnesses will further testify that the Eight Factor analysis consists of evaluating the following for the drug or substance in question:

1. Its actual or relative potential for abuse;
2. Scientific evidence of its pharmacological effect, if known;
3. The state of current scientific knowledge regarding the drug or other substance;
4. Its history and current pattern of abuse;
5. The scope, duration, and significance of abuse;
6. What, if any, risk there is to the public health;
7. Its psychic or physiological dependence liability; and
8. Whether the substance is an immediate precursor of a substance already controlled.”

The FDA officials who DEA is asking the judge to subpoena would provide testimony that’s “relevant to the proposed rescheduling of marijuana,” the agency said in a letter to the judge regarding its latest filing. “Please tender the requested subpoenas to the Government for appropriate service.”

For the first factor on potential for abuse, DEA said witnesses will “testify regarding evidence of the hazards of marijuana to individual health and public safety; the potential diversion of marijuana from legitimate drug channels; individuals taking marijuana on their own initiative rather than on the basis of medical advice; and, marijuana’s likelihood of abuse.”

Additionally, witnesses will speak to “the currently accepted medical use of marijuana” and “the widespread current experience with medical use of marijuana, currently a Schedule I controlled substance, in the United States by licensed health care practitioners operating in accordance with implemented state-authorized programs, where the medical use is recognized by entities that regulate the practice of medicine. Further, the Government anticipates the witnesses will testify regarding state medical marijuana programs.”

“The Government anticipates that the witnesses will testify regarding the considerations of the risks to public health posed by marijuana. The Government anticipates the witnesses will discuss such factors as the epidemiology of risk posed by marijuana to public health, demographics of marijuana use disorder, risk of hospitalization, risks from unintentional-general exposure to marijuana, and the risk of driving under the influence of marijuana. Additionally, the Government anticipates the witnesses will testify regarding the risks to public health posed by marijuana compared to other drugs of abuse.”

The testimony preview does little to assuage advocates’ concerns about DEA’s role as the “proponent” of the proposed rule to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA). However, the testimony appears focused on a scientific review that isn’t necessarily designed to promote the potential benefits of any given controlled substance.

Marijuana Moment reached out to HHS and FDA for reaction to DEA’s subpoena request, but representatives were not immediately available.

Meanwhile, a coalition of health professionals that advocates for cannabis reform also recently asked that the DEA judge halt future marijuana rescheduling hearings until a federal court is able to address a series of allegations they’re raising about the agency’s witness selection process.

That came on the same day the Mulrooney issued a ruling that laid out the timeline for merit-based hearings on the rescheduling proposal.

D4DPR requested that the DEA judge stay the hearings—which are currently set to commence on January 21—pending a review from the U.S. District Court for the District of Columbia Circuit. A separate organization that was also denied participation, Veterans Action Council (VAC), similarly filed a petition with the same court last month to request a review of the agency’s decision to exclude it from the proceedings.

Mulrooney also recently addressed motions seeking to remove DEA from the proceedings altogether, in part due to the alleged unlawful communications with the president of one designated participant, the prohibitionist group Smart Approaches to Marijuana (SAM), signaling that he considered it statutorily complex and potentially impractical to force the agency to turn over its records on the reported ex parte communications.

“If people were going to be bad people, would they write it down in a memo so that everyone could read it?” he asked attorney Matt Zorn, who filed a Freedom of Information Act request and subsequent lawsuit to obtain any records of the talks and represents D4DPR in the latest motion. “What are you chasing? Are you chasing a note that somebody wrote, ‘I had an improper conversation with somebody else, I wanted to put it the memo in case someone wants to indict me?’”

The rescheduling proceedings have generated significant public interest. While moving marijuana to Schedule III wouldn’t federally legalize it, the reform would free up licensed cannabis businesses to take federal tax deductions and remove certain research barriers.

But while DEA is designated as the “proponent” of the proposed rule, there’s been skepticism about where the agency’s leadership actually stands on the issue and whether it may insert bias into the hearing process.

In a prehearing statement submitted last month, DEA previewed the testimony its two agency witnesses plan to provide at the upcoming hearing—without clarifying where it stands on the rescheduling proposal.

The agency also said that the U.S. Department of Health and Human Services (HHS)—which carried out a scientific review that informed the proposal to move cannabis to Schedule III—“rejected” its request to provide witnesses.

While the initial preliminary hearing happened on Monday, the merit-based proceedings were delayed until at least early 2025 after Mulrooney notified DEA that it provided insufficient information about the 25 selected witnesses that Milgram submitted.

Meanwhile, Mulrooney also denied a motion to remove the agency from hearings on the cannabis proceedings. However, he sharply criticized responses from DEA and a prohibitionist group over an allegation that they unlawfully communicated during the cannabis rulemaking process.

An attorney subsequently filed a lawsuit against DEA for allegedly violating federal public records laws, requesting that a court compel the agency to disclose communications with SAM.

Separately, the judge denied a request from a cannabis and psychedelics researcher to postpone the upcoming rescheduling hearing over the agency’s alleged “improper blocking” of witnesses, while arguing that the process should be halted at least until President-elect Donald Trump’s administration comes into power so it can review the rulemaking.

Mulrooney also rejected a veterans group’s petition to participate in the rescheduling hearing, which the organization called a “travesty of justice” that excludes key voices that would be affected by the potential policy change. That group has asked the U.S. Court of Appeals for the D.C. Circuit to intervene on its behalf.

For what it’s worth, Vice President Kamala Harris said recently that part of the reason for the delay in the administration’s marijuana rescheduling effort is federal bureaucracy that “slows things down,” including at DEA.

In March, Harris also expressed some frustration with the bureaucratic process of rescheduling marijuana, prior to DOJ’s formal recommendation, calling on DEA to expediently finish the job.

While the Biden–Harris administration facilitated the review that led to the DOJ rescheduling proposal, Trump has also voiced support for the reform.

Trump’s recently announced pick for DEA administrator, Hillsborough County, Florida Sheriff Chad Chronister, backed a cannabis decriminalization policy enacted by local officials.

In Congress, numerous lawmakers have shared their own perspectives on the proposed reform with DEA and DOJ since the Schedule III announcement was made.

In August, for example, Sen. Chuck Grassley (R-IA) raised concerns about the Biden administration’s justification for recommending marijuana rescheduling, demanding answers to questions from federal agencies about how they arrived at that decision in what he described as a rushed and unconventional administrative process.

A week earlier, top Democratic senators—including  Senate Majority Leader Chuck Schumer (D-NY)—sent a separate letter to DOJ’s Garland and DEA’s Milgram urging the agencies to ”promptly finalize” the rule to reschedule marijuana.

While rescheduling would remove certain research barriers and free up state-licensed cannabis business to take federal tax deductions under the Internal Revenue Service (IRS) code known as 280E, it would not federally legalize marijuana, as the Congressional Research Service (CRS) has made known in multiple recent reports.

Meanwhile, two additional congressional lawmakers have joined the ranks of GOP members who are challenging what they say is the “unusual” process that led the Biden administration to propose rescheduling marijuana, expressing concern about how the review was carried out and demanding answers.

Rep. Doug LaMalfa (R-CA) condemned the Biden administration’s push to reclassify marijuana, as well as legislative efforts to enact bipartisan cannabis banking reform, because he says the policy changes would “prop up this immoral industry” and give a “green light to the evil that comes from drug use.”

Sen. Bill Cassidy (R-LA) also blasted the Biden administration over what he described as repeated refusals from federal agencies to brief Congress on its plans and justification for rescheduling marijuana, which he argues fuels speculation that the proposed policy change is politically motivated.

Similarly, 25 GOP congressional lawmakers sent a public comment letter in July opposing the administration’s planned rescheduling of marijuana, specifically alleging the government’s recommendation was based on politics rather than science.

Read DEA’s latest filings in the marijuana rescheduling case below: 

Dea Marijuana Rescheduling … by Marijuana Moment

Marijuana Companies Are Trying To Avoid Paying Taxes They Owe Under 280E Provision Without A ‘Reasonable Basis,’ IRS Says

Photo courtesy of Mike Latimer.