Long road ahead for US cannabis rescheduling

As the U.S. Drug Enforcement Administration takes its first step in reclassifying cannabis’ drug status, the stage is being set for traffic on the road ahead.

The proposed rule, which aims to reevaluate cannabis’ current classification as a Schedule I substance (indicating high potential for abuse and no accepted medical use), is now under review by the Office of Management and Budget.

And while federal law doesn’t explicitly outline a timeline for this process, clarity on the distance between now and a post-rescheduling reality is a bit foggy when considering other factors.

“There’s a lot of factors we’ll know more about in the near future that could inform the timeline, but it’s certainly possible this process could be completed this year,” Shawn Hauser, a partner at Denver-based Vicente LLP, told Green Market Report. “And it’s possible it takes longer.”

The process road map, according to law, includes:

1. OMB review (up to 90 days): The Office of Management and Budget analyzes the proposed rule before returning it to the DEA for publication in the Federal Register.
2. Public comment period (30-90 days): Stakeholders provide input and request an administrative hearing.
3. Administrative hearing (a few months to over a year, if granted): If the DEA grants a hearing, evidence can be presented in a manner similar to a standard court proceeding, focusing on the DEA’s scheduling recommendation. The timeline for this hearing will depend on various factors.
4. DEA review (a few months to over a year): The DEA will review all information provided on the record, including evidence presented during the hearing. There is no statutory time limit for this stage.
5. Final rule (effective 30 days after publication): The DEA issues a final rule, which becomes effective 30 days after publication in the Federal Register.
6. Judicial review (up to 3 years, if challenged): Aggrieved parties with standing can seek judicial review of the final rule, potentially adding on time to the process.

What to watch: Even without a judicial review, the rescheduling process could range between months to a few years, depending on the length of the public comment period, the volume of comments received, as well as the Biden administration’s urgency on the issue. Still, legal challenges that lead to a judicial review process could extend the timeline.

The potential rescheduling of cannabis could have far-reaching implications for the drug’s legal status, affecting access, research, and enforcement in the United States. States that have already legalized cannabis for medical or recreational use will also be a point of interest as the process unfolds.

“The comment period and hearing will likely focus on core legal issues relating to the U.S. meeting its treaty obligations in Schedule III,” Hauser noted, “and the sufficiency of evidence to support that marijuana has medical use in treatment using (the Department of Health and Human Services’) new two-factor test.”