Top Marijuana Industry Group Asks DEA Judge Whether It Can Question Agency In Rescheduling Hearings

One of the nation’s leading marijuana industry associations is asking a Drug Enforcement Administration (DEA) judge to clarify whether it will be afforded the opportunity to cross-examine the agency during upcoming hearings on the Biden administration’s cannabis rescheduling hearings.

With lingering questions about where DEA stands on the proposal to move marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA), the National Cannabis Industry Association (NCIA) has asked DEA Administrative Law Judge (ALJ) John Mulrooney whether its status as a witness with a uniquely diverse perspective on the issue means it can question the agency at the hearings.

When Mulrooney laid out the hearing process, he stipulated that the government and pro-rescheduling participants will be able to cross-examine the anti-rescheduling parties, and vice versa. But he’s also recognized that NCIA is both an “interested person” because it will be “aggrieved” by the proposed rule and also an association with a “large and diverse membership” who back the reform.

To that end, NCIA is seeking clarification on whether that dual status means it will be able to cross-examine both opponents of the rule, as well as DEA. Also, while the judge ruled that each designated participant (DP) is limited to one witness, the group is asking whether it can call two witnesses given its “unique position” in the proceedings.

“We agree that our membership’s experiences will allow us to elucidate important evidence through such cross-examinations. However, as both an ‘interested person’ aggrieved by a portion of the Rule, as well as a DP whose interests are otherwise largely aligned with the Pro-Rescheduling DPs, we are left speculating as to whether whether the Government and the Pro-Rescheduling DPs will be allowed to cross-examine NCIA’s witness in support of its limited objection to the Rule…and whether NCIA will in turn be allowed to cross-examine the Government’s witness as an ‘interested person.’”

“While we value the ability to present a witness on our limited objection and for cross- examination by the Government, as the nation’s oldest and largest trade association for state-regulated cannabis, NCIA believes it would be able ‘to provide qualified witnesses’ that would be particularly beneficial to this Court and provide unique insights drawing on the experiences of ‘its large and diverse membership’ with a ‘commercial perspective available to it [that] would be helpful to the adjudication of this’” notice of proposed rulemaking (NPRM), it said.

The ALJ’s prehearing ruling also set time restrictions for testimony and cross-examination for each of the parties, stressing the importance of efficiently in the process. NCIA said it “understands this Tribunal’s desire” to limit “superfluous live testimony.” As such, it said that if the group is allowed to present two witnesses, it would not take up 90 minutes each and would instead limit their testimony to 60 minutes each in order to be “as efficient as possible with both direct examinations.”

The additional witness that the association wants to call to testify is Jennifer Mitchell, a professor of neurology at the University of California, San Francisco, who also serves as the chair of the Research Advisory Panel of California (RAP-C) in the California Attorney General’s office. She also works for the U.S. Department of Veterans Affairs, currently serving as the associate chief of staff for research and development at the San Francisco VA Medical Center.

NCIA contended that Mitchell possesses “decades of experience” in relevant roles that distinguishes her from the other designated participants.

Also, “unlike the DPs opposing the Rule, none of the DPs in support of the Rule (other than NCIA) have standing as an ‘interested person,’ thus entitling NCIA’s witness(es) to greater deference from this Tribunal and ensuring that at least some of the evidence submitted in support of the Rule is given equal weight to the evidence submitted in opposition to the Rule,” it said.

Mitchell said in an affidavit submitted to the ALJ that she is “not aware of any significant scientific or medical research on marijuana, published after the [U.S. Department of Health and Human Services] Recommendation, that would either contradict the HHS’s findings or undermine my confidence in the analysis that serves as the basis for the HHS Recommendation” to reschedule marijuana.

“It is consistent with my own professional opinion that marijuana has widely accepted medical use and a lower potential for abuse when compared to other drugs in Schedules I and II,” she said.

NCIA additionally asked the judge to allow witnesses to participate via video teleconference and to let the association’s leadership attend specific dates of the hearings.

DEA, for its part, also turned in materials to the agency judge on the “homework” deadline he set for Friday. And it asked Mulrooney to approve subpoenas to compel Food And Drug Administration (FDA) officials to testify at upcoming hearings on the marijuana rescheduling proposal.

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.

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.

Doctors for Drug Policy Reform (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 NCIA’s letter to the judge on the marijuana rescheduling hearing below: 

NCIA Letter DEA Judge by KyleJaeger

Photo courtesy of Chris Wallis // Side Pocket Images.

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