Former DEA Administrators Weigh in on Marijuana Rescheduling

The Drug Enforcement Administration (“DEA”) has received more than 27,000 public comments in response to its May 21, 2024, Notice of Proposed Rulemaking (“NPRM”) to reschedule marijuana from schedule I to schedule III.  However, none may carry more weight than a short comment just over one page in length.  That letter, dated June 19th and signed by nine former DEA Administrators and Acting Administrators, requests that their successor, the current DEA Administrator, hold a hearingon rescheduling.  They opine that “[g]iven the magnitude of the impact of the proposed rule and considering we face an unprecedent drug overdose crisis in this country . . . a hearing on this rulemaking is in the public interest.”  Letter to DEA Administrator Anne Milgram, from Peter Bensinger, et al., (June 19, 2024).  

The decision whether to hold a hearing to address matters of fact and law in the rescheduling rests with the DEA Administrator.  The deadline for requesting a hearing or participating in a hearing was June 20, 2024, but the deadline for all public comments is July 22, 2024.

The request for hearing follows an October 2023 letter preceding the NPRM from six former Administrators and five former Directors of National Drug Policy.  That letter to Attorney General Garland and Administrator Milgram imploredagainst rescheduling, urging them “to follow the science demonstrating marijuana’s high addictive potential and its lack of accepted medical use, as well as the impact rescheduling will have on law enforcement and the ability to prosecute drug trafficking organizations.”  Letter to U.S. Attorney Merrick Garland and DEA Administrator Anne Milgram, from Michele Leonhart, et al., (Oct. 2023). Five former Administrators who signed the October letter also signed the June letter.

The Controlled Substances Act (“CSA”) requires analysis of eight statutory factors for scheduling, rescheduling, or descheduling substances of abuse.  21 U.S.C. § 811(c).  The Department of Justice reviewed Health and Human Services’ August 2023 rescheduling recommendation and conducted a separate review of the eight factors.  NPRM at 44,601.  The NPRM, however, noted that DEA “has not yet made a determination as to its views of the appropriate schedule for marijuana.”  Id. For each factor, the NPRM noted that for DEA, additional information during the rulemaking would inform about the appropriate schedule for marijuana. The NPRM further stated that DEA believes that factual evidence (including scientific data) and expert opinions with additional data on different forms, formulations, delivery methods, dosages, and concentrations “may be relevant.”  Id.

In the June letter, the Administrators characterize marijuana rescheduling to schedule III as “likely the most consequential rulemaking DEA has ever attempted . . . [and] would be the most significant relaxation of narcotics restrictions in the history of the CSA.”  Letter to DEA Administrator Anne Milgram (June 19, 2024).  They say that such a “sweeping change” requires “a robust administrative record.”  Id.

The Administrators point to DEA stating in the NPRM that determining whether marijuana should be rescheduled to schedule III requires “additional data and rigorous scientific analysis” and that the claims about “marijuana’s pharmacological effects, potential for abuse, and implications for public safety” should be subject to a hearing.  Id.  A hearing, they note, would allow outside experts to opine on the latest evidence and be cross-examined.  In addition, a hearing would also allow local leaders, law enforcement, and advocacy organizations to address the subject.  Id.

The Administrators further stress the importance of assessing how such a “major change in drug policy could impact the ongoing and devastating drug abuse crisis facing this country.” Id.  Lastly, they express their belief that a public hearing on rescheduling “would enhance transparency, integrity, and public confidence in this process, regardless of what final resolution is reached.”  Id.

We cannot help but wonder how much weight the current Administrator and DEA will give to the Administrators’ June 2024 request for hearing and the earlier October request to leave marijuana in schedule I.