Marijuana Moment: Marijuana Opponents Preview Arguments For Next Week’s Rescheduling Hearing In New Filings

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Marijuana reform opponents have filed briefs previewing the arguments they plan to make in a hearing on the Trump administration’s move to reschedule cannabis that is set to start next week.

Meanwhile, the Drug Enforcement Administration (DEA), which is formally the proponent of the reform to move marijuana from Schedule I of the Controlled Substances Act (CSA) to Schedule III has again made clear it will not be inviting supporters of rescheduling to participate.

A brief from the states of Idaho, Indiana and Nebraska says that each of them “prohibits or severely restricts the availability of marijuana within its borders, as marijuana causes our citizens psychiatric harm and is linked to increases in homelessness, traffic accidents, illegal drug trafficking, and other crime.”

The states said they intend to call Deepak Cyril D’Souz, the inaugural director of the Yale Center for the Science of Cannabis and
Cannabinoids, as a witness in the hearing.

“He is expected to testify regarding the abuse liability of cannabis, drawing upon evidence from controlled human laboratory studies, brain imaging, and epidemiologic research,” the statement says. “The available scientific evidence demonstrates that regular cannabis use can lead to cannabis use disorder in a substantial proportion of users.”

It adds that he is “expected to summarize the scientific evidence regarding the principal public health risks associated with cannabis use, including: (1) an increased risk of serious mental illnesses, particularly psychotic disorders in susceptible individuals; (2) cannabis use disorder and addiction; (3) driving impairment; (4) adverse effects of cannabis exposure during adolescence and pregnancy on neurodevelopment; and (5) acute and chronic impairments in learning, memory, and other cognitive functions.”

The states’ other witness will be Humboldt County, California Sheriff William Honsal, who will testify that “legalization and changes in marijuana laws contributed to a significant expansion of the illicit marijuana market rather than its elimination.”

“Sheriff Honsal is expected to testify that the medical marijuana framework was frequently exploited by criminal enterprises,” the statement says.

“Because healthcare providers issued ‘recommendations’ rather than prescriptions, there were no meaningful limits on dosage or quantity. He can testify that some recommendations authorized extraordinarily large quantities of marijuana. Some growers claimed authority to cultivate as many as 99 plants per patient and that individual plants could yield from one-quarter pound to as much as four pounds of marijuana. He will testify that there are cultivation sites capable of producing thousands of pounds of marijuana annually, particularly through indoor growing operations that can complete five or six harvest cycles each year.”

“The Sheriff is expected to testify that, once marijuana ceased being categorically illegal, criminal organizations exploited perceived loopholes in the medical marijuana laws to mass-produce marijuana for interstate and international distribution,” the states said.

Notably, Louisiana was initially a party in the rescheduling hearing along with the other states but was not mentioned in the latest brief.

Separately, the Tennessee Bureau of Investigation (TBI), another party participating in the hearing, said its witness will be Erica Stephens, who serves as assistant special agent in charge of the Tennessee Dangerous Drugs Task Force.

She will testify about “the impact marijuana has had on TBI’s mission of keeping Tennesseans safe and how deregulation of marijuana, including legalization of hemp, makes TBI’s enforcement efforts more difficult, encourages involvement of criminal organizations in the production and distribution of marijuana, and negatively impacts the health and safety of Tennesseans,” the agency’s filing said.

Stephens will also testify about her view that the government’s marijuana rescheduling proposal is “deficient” and “overlooks or ignores substantial evidence relevant to the required eight-factor analysis that weighs strongly against rescheduling marijuana to Schedule III.”

“Agent Stephens will testify that marijuana is being diverted from both federally approved and state-approved channels. Tennessee does not recognize any form of legal marijuana. This diversion takes place in two primary forms: (1) trafficking of illicit marijuana from states that license the cultivation, production, and distribution of marijuana, and (2) the growing of illegal marijuana in licensed hemp farms.”

“Deregulation of marijuana presents a substantial public health risk. Agent Stephens will testify about how deregulation in states fosters a legal environment that can be exploited by criminal organizations,” the filing said. “Additionally, marijuana has a high association with crime and is the most associated with crimes against persons in Tennessee. Agent Stephens may also discuss evidence regarding traffic deaths caused by people driving under the influence of marijuana.”

Meanwhile, Smart Approaches to Marijuana (SAM), a leading anti-legalization group that is participating in the proceedings, said it will call DEA pharmacologist Luli Akinfiresoye as a witness—a move that the agency has resisted in communications with the organization this week.

The DEA official was previously an official witness for an earlier, subsequently cancelled hearing on marijuana rescheduling during the Biden administration. During that time, she submitted into the record a report that attempts to link cannabis consumption to psychosis, depression and impaired cognitive functioning.

SAM said Akinfiresoye is “expected to testify that marijuana has a substantial potential for abuse, a well-documented capacity to produce dependence, and a broad range of adverse health consequences affecting multiple organ systems and vulnerable populations.”

“She is also expected to testify that marijuana has clear dependence liability. She will explain that repeated THC exposure alters brain reward pathways, producing reinforcing effects that can lead to [Cannabis Use Disorder].”

She is also “expected to testify that there are numerous adverse health consequences associated with marijuana use. Acute intoxication can impair memory, judgment, motor coordination, attention, and decision-making, increasing risks for accidents and impaired driving. Chronic use is associated with measurable alterations in brain structure and function, including changes in gray and white matter, reduced hippocampal volume, cognitive deficits, lower IQ, impaired memory, and diminished executive functioning. She will discuss these impacts as they relate to adolescent exposure, as marijuana may interfere with normal brain development and increase vulnerability to psychiatric disorders later in life.”

The prohibitionist group is also hoping the Akinfiresoye will “testify that credible scientific research links marijuana use to serious mental health risks, including psychosis, schizophrenia, depression, anxiety, bipolar disorder exacerbation, and suicidality,” the prehearing statement said.

Separately, SAM will also be calling former White House Office of National Drug Control Policy Director Bertha Madras, saying she will “testify that marijuana (1) has a high potential for abuse, (2) has no currently accepted medical use, and (3) lacks accepted safety for use under medical supervision, and thus does not meets the statutory standard for classification in any schedule other than Schedule I of the Controlled Substances Act.”

Another participant, the National Drug & Alcohol Screening Association (NDASA), said it will call former Department of Transportation official Patrice Kelly as a witness. The statement goes on to describe testimony that the organization’s executive director, JoMcGuire, will provide, including how the government’s rescheduling proposal “failed to address the unintended safety impact” the reform “would have on transportation safety.”

Meanwhile, DEA Administrator Terrance Cole rejected a request from the National Organization for the Reform of Marijuana Laws (NORML) to reconsider his decision not to invite the group as a participant in the hearing.

Cole wrote that the group’s request “fails to sufficiently explain how or why NORML is adversely affected or aggrieved by the promulgation of a rule transferring marijuana….from schedule I to schedule III.”

“You unambiguously state that ‘NORML supports removal from schedule I,’ and that ‘[s]chedule III may be better than schedule I.’ You further reiterate NORML’s position that transferring marijuana to schedule III only offers ‘partial relief,’ and that ‘complete relief’ requires that marijuana ‘be removed from the CSA schedules and regulated under a cannabis-specific federal framework better suited to cannabis, consumers, public health, state-law reality, and contemporary science.'”

“While you contend that ‘NORML’s position is…directly adverse to the proposed rule’ because it wants marijuana removed from the CSA schedules entirely,” the DEA head said, “NORML has failed to demonstrate in either its participation request or its reconsideration request that it is adversely affected or aggrieved by the proposed rule, as opposed to the status quo of marijuana remaining in schedule I.'”

Under a previous decision by the DEA administrator, only opponents of the reform are being invited to participate.

Marijuana Moment this seek sent a latter asking the DEA judge overseeing the proceedings to reconsider his decision to prohibit livestreaming of the hearing.

DEA Chief Administrative Law Judge Derek Julius last week issued a preliminary order laying out rules and timelines for the marijuana rescheduling proceedings—simultaneously recognizing that “national public interest in this issue predicates towards a policy of transparency” while also determining that “the hearing will not be televised, livestreamed, or broadcasted in any way.”

As a result, people who wish to observe the historic cannabis reform process must attend in person in Arlington, Virginia under the judge’s order.

In a letter sent to Julius on Tuesday, Marijuana Moment counsel Joseph A. Bondy noted that DEA permitted livestreaming of an earlier, subsequently cancelled hearing process on the proposal to move cannabis from Schedule I of the Controlled Substances Act (CSA) to Schedule III that took place during the Biden administration.

“That prior determination was correct. The public-interest rationale for contemporaneous access has not diminished,” Bondy wrote. “If DEA believes safety, witness-management, or operational concerns now require a more restrictive access regime, those concerns should be identified and addressed through narrow conditions rather than a categorical ban.”

“Limited physical seating in Arlington is not a meaningful substitute for livestreaming. Marijuana Moment, like many members of the press and public who follow federal cannabis policy nationally, cannot rely on a handful of available seats as a practical means of observing and reporting on the hearing. That is precisely why DEA’s prior livestreaming directive mattered: it allowed those physically outside the courtroom to observe the proceeding without disrupting the hearing, burdening security, or conferring party status on anyone.”

“In a proceeding of this public significance, and in light of DEA’s prior livestreaming directive, a public hearing is not meaningfully public if access depends on the happenstance of limited physical attendance,” Marijuana Moment’s attorney wrote to the DEA judge. “Delayed access to transcripts is no substitute for contemporaneous observation. The press reports events as they unfold. The public evaluates government action in real time. And in a proceeding of this magnitude, transparency is not a courtesy. It is a safeguard.”

“For a substantial public audience seeking serious coverage of federal cannabis policy, Marijuana Moment is an important channel through which public understanding of this proceeding occurs.”

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DEA last week announced that it had selected participants for the marijuana rescheduling hearing—and only opponents of the reform have been invited to take part, some of whom have filed litigation in an attempt to block the reform. No reform supporters who expressed intent to participate were invited.

The hearing will begin on June 29 and is set to conclude no later than July 15.

Acting Attorney General Todd Blanche in April issued an order that immediately reclassified state-licensed medical cannabis, as well as marijuana products approved by the Food and Drug Administration (FDA) from Schedule I of the Controlled Substances Act (CSA) to Schedule III.

Under a separate order the acting attorney general signed, the upcoming hearing will consider more comprehensively moving marijuana to Schedule III.

A prior hearing process on the marijuana rescheduling process that was initiated by the Biden administration stalled last year amid litigation over alleged improper communications and witness selection.

The current marijuana rescheduling process is being challenged with several lawsuits that have been consolidated by a federal appeals court. Those pieces of litigation against the cannabis reform have been filed by state attorneys general, marijuana legalization opponents and a cannabis-focused biopharmaceutical corporation.

Meanwhile, the already-enacted rescheduling of state-licensed medical cannabis is already having broad impacts.

The Congressional Research Service published a report on the current cannabis rescheduling move explaining that certified patients who possess medical marijuana from state-licensed dispensaries now have certain protections under Schedule III. “The order appears to authorize end users to possess marijuana for medical use without a CSA-compliant prescription,” it says.

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has posted a draft update to a gun purchase form to acknowledge the federally legal status of medical marijuana under rescheduling. The revised section in question notably says that only “use or possession of marijuana for recreational purposes” is federally prohibited, leaving out the prior form’s mention of medical cannabis.

The U.S. Department of the Treasury and Internal Revenue Service (IRS) said they plan to issue new tax guidance for the marijuana industry following rescheduling. The reform will benefit state-licensed marijuana businesses by allowing them to take federal tax deductions they’re currently barred from under an IRS code known as 280E that doesn’t apply to Schedule III substances.

Even DEA, which has long opposed cannabis legalization and was accused of stalling the rescheduling process initiative by the Biden administration, has launched a registration process for state-legal marijuana businesses to take advantage of federal benefits that come with the reform.

The Department of Transportation, on the other hand, issued guidance saying that use of state-legal medical cannabis is still no excuse for a positive drug test by truck drivers, pilots and other safety-sensitive workers.

A congressional committee recently voted to block federal officials from taking further steps to carry out cannabis rescheduling.

Read the new documents in the marijuana rescheduling hearing below:

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