Congressman Demands Answers From DEA On Marijuana Rescheduling Review

One of the co-chairs of the Congressional Cannabis Caucus sent a letter to the head of the Drug Enforcement Administration (DEA) on Thursday, urging the agency to release more information about its ongoing review of marijuana’s scheduling status under the federal Controlled Substances Act (CSA)—including what its “planned deadline” is for finishing and whether it will take into account the fact that many states have already legalized cannabis.

“Clear and proactive communication is critical as this formal scheduling review moves forward,” Rep. Earl Bluemauer (D-OR) wrote to DEA Administrator Anne Milgram.

The correspondence comes in response to a recent assertion from DEA that it has “final authority” on the rescheduling decision—which itself was a reply to a separate letter from Blumenauer and 30 other bipartisan lawmakers.

Since news first leaked of the Department of Health and Human Services (HHS) recommendation that marijuana be moved to Schedule III of the controlled substances act, advocates have worked to uncover more details about the review. Last month, facing numerous public records requests as well as at least one lawsuit over the matter, health officials finally released more than 250 pages of medical review and other related documents.

It’s still unclear when DEA will act, however. In comments this week to Marijuana Moment, a Biden administration official dismissed rumors that a rescheduling decision would come this week.

Blumenauer’s letter asks five specific questions of DEA:

• What is DEA’s planned deadline to publish its draft rule on the scheduling of marijuana for public comment?
• What is the standard timeline for DEA’s drug scheduling reviews?
• On what date did DEA begin its review following receipt of HHS’s findings and recommendation on marijuana scheduling?
• How is DEA ensuring the agency’s review incorporates the status of marijuana under state laws and regulations in its scheduling decision?
• How will DEA proactively communicate developments and receive feedback from congressional partners as the review proceeds?

Also CCed on the letter are HHS Secretary Xavier Becerra, U.S. Attorney General Merrick Garland and Michael D. Miller, acting chief of DEA’s Office of Congressional Affairs.

Prior to last month’s release of the rescheduling-related documents, all that had been made public were a highly redacted version of the HHS rescheduling memo and a single page of the recommendation revealed last October, also heavily redacted.

While Blumenauer’s new letter calls the recommendation to move marijuana under Schedule III of the CSA “an important step in the right direction,” the congressman said the change doesn’t go far enough.

“Moving marijuana to Schedule III is not sufficient,” the congressman wrote, “to correct the wrongs of federal prohibition or to meaningfully address the federal-state gap on cannabis policy.”

“While Congress works to send the President comprehensive cannabis legislation, the urgency of full descheduling should inform DEA’s position on overall cannabis reform,” he said. “Appropriate enforcement should be centered on advancing public safety, not unjust criminalization. Marijuana’s continued inappropriate scheduling is both arcane and out-of touch with the will of the American people.”

Federal lawmakers have been especially active of late in their advocacy for action—or inaction—on cannabis scheduling.

Last week, for example, a Republican congressman who has long opposed marijuana reform told DEA that the Food and Drug Administration (FDA) came to a “misguided conclusion” to recommend rescheduling cannabis—challenging the health agency’s scientific standards and imploring DEA to dismiss them as it prepares to make a final determination.

A separate letter sent to DEA Administrator Milgram last week—led by Sens. Elizabeth Warren (D-MA) and John Fetterman (D-PA), along with Senate Majority Leader Chuck Schumer (D-NY) and other champions of marijuana reform—urged DEA to go further than rescheduling by fully removing cannabis from the CSA.

HHS Secretary Becerra said last month that his agency has “communicated” its “position” on marijuana rescheduling to DEA and has continued to offer additional information to assist with the final determination.

DEA has steadfastly maintained it has “final authority” over the matter and can make any scheduling determination that it sees fit.

“DEA has the final authority to schedule, reschedule, or deschedule a drug under the Controlled Substances Act, after considering the relevant statutory and regulatory criteria and HHS’s scientific and medical evaluation,” the agency said in a letter to lawmakers last month. “DEA is now conducting its review.”

Prior to HHS releasing a trove of documents concerning its cannabis recommendation, a coalition of 12 Democratic state attorneys general implored DEA to move forward with federal marijuana rescheduling, calling the policy change a “public safety imperative.”

In another letter, sent in December, 29 former U.S. attorneys called on the Biden administration to leave cannabis in Schedule I.

Also that month, the governors of six U.S. states—Colorado, Illinois, New York, New Jersey, Maryland and Louisiana—sent a letter to Biden calling on the administration to reschedule marijuana by the end of last year.

Meanwhile, six former DEA heads and five former White House drug czars sent a letter to the attorney general and current DEA administrator voicing opposition to the top federal health agency’s recommendation to reschedule marijuana. They also made a questionable claim about the relationship between drug schedules and criminal penalties in a way that could exaggerate the potential impact of the incremental reform.

Signatories included DEA and Office of National Drug Control Policy heads under multiple administrations led by presidents of both major parties.

In October, Advocates and lawmakers who support cannabis reform marked the one-year anniversary of Biden’s mass marijuana pardon and scheduling directive by calling on him to do more—including by expanding the scope of relief that his pardon had and by expressly supporting federal legalization.

Two GOP senators, including the lead Republican sponsor of a marijuana banking bill that cleared a key committee in September, also filed legislation late last year to prevent federal agencies from rescheduling cannabis without tacit approval from Congress.

A coalition of 14 Republican congressional lawmakers, meanwhile, separately urged DEA to “reject” the top federal health agency’s recommendation to reschedule marijuana and instead keep it in the most restrictive category under the CSA.

A recent poll found that about one-third of marijuana consumers say they would go back to the illicit market if cannabis was rescheduled and only made legally available as a Food and Drug Administration- (FDA) approved prescription drug.

Another recent survey found that President Joe Biden stands to make significant political gains if marijuana is rescheduled under his administrative directive. Of course, Biden doesn’t directly control the final outcome.

The president has routinely touted his 2022 scheduling directive, as well as a mass pardon he granted for people who’ve committed federal marijuana possession offenses. He followed up on that action in December with a renewed and expanded pardon proclamation. The Justice Department has already begun issuing certifications for people who applied under the second round.

Last weekend, meanwhile, Vice President Kamala Harris said the administration’s move to pardon people for federal marijuana possession offenses is an example of how it is delivering for Americans, particularly young and Black voters who could be key to Biden’s reelection bid this year.

Read Blumenauer’s full letter to DEA below: