Behind Closed Doors: What Happened in the Opening Days of the DEA Cannabis Hearing

The hearing to consider a proposal to reschedule recreational marijuana under federal drug laws kicked off this week, with the Food and Drug Administration and the Drug Enforcement Administration taking starring roles in the proceedings. Cannabis prohibitionists also got a chance to cross-examine government witnesses, while longtime pot advocates were excluded from the hearing.

The hearing was scheduled to consider a proposal from the Trump administration to remove cannabis from Schedule I of the federal Controlled Substances Act and place it in Schedule III, a less restrictive classification that has significant implications for the regulated cannabis industry. State-legal medical cannabis and FDA-approved cannabis medicines were moved to Schedule III in April.

DEA Argues Cannabis’ Safety on Hearing’s First Day

The hearing began on Monday and is scheduled to last through the middle of July. First up were lawyers for the DEA, who noted that the agency is the proponent of the proposed rule change, Marijuana Moment reported. 

DEA attorney James J. Schwartz said that the hearing’s purpose is “regulation, not legalization.” 

“The government is not putting forth any evidence to suggest marijuana is not dangerous. All controlled substances are dangerous,” he said. “However, controlled substances must be evaluated by risks they pose, balanced by medical benefits they provide.”

Dominic Chiapperino, director of the controlled substance staff at the FDA’s Center for Drug Evaluation and Research, testified that the agency compared the safety of cannabis to alcohol, opioids, and other substances, finding that the harms from marijuana were generally lower than all or most of the drugs reviewed. He also noted that the risk of overdose deaths from cannabis is “much lower” than that of other Schedule I drugs and Schedule II drugs such as opioids.

The proceedings in Washington, D.C. are being followed by cannabis advocates and industry executives across the country, despite a decision from the administrative law judge to reject requests for the hearing to be livestreamed. Adam Stettner, CEO of cannabis industry financial firm FundCanna, said the opening testimony reveals a substantive shift in federal cannabis policy.

“This historic moment isn’t simply that the FDA and DEA defended rescheduling,” Stettner wrote in a statement to IgniteIt. “It’s that, in just the first two days, the federal government publicly acknowledged on the record that cannabis presents a lower risk profile than many substances that are already legal or less restricted. That’s a significant shift in federal stance and policy and one that I believe will have lasting implications regardless of the outcome of this hearing.”

Day 2: Prohibitionists Grill Government Witnesses

The second day of the hearing on Tuesday gave prohibitionists the opportunity to cross-examine government witnesses who testified on Monday. An attorney for Idaho, Indiana, and Nebraska, three states participating in the hearing as opponents of rescheduling, focused on a new two-part test the DEA used to determine if cannabis has a currently accepted medical use (CAMU). Under the CSA, drugs with a CAMU do not belong in Schedule I.

The two-part test replaced a five-part test previously used by the agency to determine CAMU. When asked, FDA witness Chiapperino acknowledged that marijuana would not have passed the five-part test, leading Kevin Sabet, CEO of the prohibitionist group Smart Approaches to Marijuana, to say the testimony was “truly extraordinary.”

“Let’s be clear about what this means,” he said in a video posted to social media, according to a report from Marijuana Moment. “It means that the government is asking to move marijuana out of Schedule I, but it did so using a brand new standard instead of a standard that it had applied for years, which has applied for every other drug—and now in open court its own witness has acknowledged that marijuana would not have met the traditional test.”

Cannabis Advocates Shut Out of Hearing

While opponents of cannabis rescheduling are participating in the hearing, DEA administrator Terrance Cole declined to invite cannabis policy reform advocates, saying they do not meet the definition of an “interested person” because they are not “adversely affected or aggrieved by any rule or proposed rule issuable.”

Javie Hasse, High Times editor-in-chief and co-founder of IgniteIt, says the format excludes the voices of people who have a stake in the rescheduling proposal.

“What gives me pause is the setup. The DEA invited seven participants, and all seven oppose rescheduling,” Hasse said in a statement. “Every reform supporter who asked to take part was turned away. The agency’s stated reasoning is that only parties ‘adversely affected’ by the rule qualify as interested persons, and since supporters supposedly aren’t harmed by rescheduling, they don’t make the cut. But look at the logic. Supporters aren’t harmed if Schedule III passes. They are very much harmed if it doesn’t.”

The DEA’s hearing on rescheduling cannabis is scheduled to wrap up by July 15.