The Drug Enforcement Administration (DEA) has requested a federal judge to issue subpoenas compelling Food and Drug Administration (FDA) officials to testify at upcoming hearings regarding the Biden administration’s proposal to reschedule marijuana. The move signals a critical step in a debate that could reshape federal cannabis policy and its classification under the Controlled Substances Act.
A Critical Deadline Met Amid Procedural Wrangling
Friday marked the submission deadline for the DEA, federal agencies, and other stakeholders to provide additional evidence, witness lists, and other preparatory materials ahead of the hearings. These hearings are set to evaluate whether marijuana should be moved from Schedule I—reserved for substances with no accepted medical use and a high potential for abuse—to the less restrictive Schedule III category.
The DEA’s filing revealed plans to subpoena four FDA officials despite prior indications from the Department of Health and Human Services (HHS) that it would not voluntarily participate in the hearings. The agency also intends to introduce tens of thousands of public comments it received during the rulemaking process as evidence, a contentious decision given prior admonishments from the presiding DEA Administrative Law Judge, John Mulrooney.
Judge Mulrooney’s Warnings on Evidence Submission
Judge Mulrooney has previously warned against overwhelming the tribunal with inadmissible public comments. In a pointed prehearing ruling, he emphasized that such comments are not evidence and cautioned against their submission, describing it as a potential delaying tactic.
Nevertheless, the DEA maintains that the comments are essential. The agency argued that these submissions offer valuable insights for decision-makers and requested permission to file them electronically due to the volume of material. This insistence could intensify tensions in the already fraught proceedings.
The FDA’s Role and Expected Testimony
The DEA’s plan to subpoena FDA officials focuses on their expertise related to the scientific and medical evaluations outlined in the HHS’s Eight Factor analysis, which forms the basis of the rescheduling proposal. The eight factors examine a substance’s abuse potential, medical use, pharmacological effects, and public health risks.
Specifically, the DEA has highlighted the following areas for testimony:
- Evidence of marijuana’s impact on individual health and public safety.
- The potential for marijuana diversion from legitimate drug channels.
- Patterns of medical use under state-authorized programs.
- Risks to public health, including marijuana use disorder, unintentional exposure, and driving under the influence.
The testimonies are expected to provide insights into both the risks and current medical applications of marijuana, though they are unlikely to directly advocate for the benefits of rescheduling.
Public Comments: A Sticking Point
The inclusion of public comments as evidence remains a divisive issue. Judge Mulrooney has expressed skepticism about their admissibility and relevance, yet the DEA is adamant about their value. Advocates for cannabis reform view this as an attempt to bolster the DEA’s case, potentially at the expense of a balanced examination of marijuana’s reclassification.
Some stakeholders argue that public comments could be used to skew the debate, while others see them as an opportunity to include diverse voices in a process that affects millions of Americans.
Rescheduling Hearings Face Legal Challenges
Compounding the procedural disputes, advocacy groups have raised concerns about the fairness of the DEA’s witness selection process. Organizations such as Doctors for Cannabis Regulation (D4DPR) and Veterans Action Council (VAC) have filed petitions in federal court to address what they claim is the DEA’s exclusion of key participants from the hearings.
The groups have also criticized the agency’s alleged improper communications with prohibitionist organizations, raising questions about transparency. In one exchange during a recent motion, Judge Mulrooney dismissed the likelihood of uncovering explicit evidence of such communications, underscoring the challenges in proving these allegations.
Looking Ahead to January Hearings
The rescheduling hearings are scheduled to begin on January 21, but the legal and procedural challenges surrounding the process remain unresolved. Calls to stay the hearings until federal courts address the allegations against the DEA have yet to gain traction, leaving uncertainty about how the proceedings will unfold.
For advocates and opponents of cannabis reform alike, the outcome of these hearings could mark a pivotal moment in shaping U.S. drug policy. Whether the DEA can substantiate its case through subpoenaed testimony and public comments—or whether the process is derailed by legal challenges—remains to be seen.
