DEA Makes Its Final Case for Marijuana Schedule III — Here’s What It Says

The Drug Enforcement Administration has made its closing argument for moving marijuana from Schedule I to Schedule III, bringing the federal rescheduling proceeding closer to a recommendation after years of regulatory uncertainty.

In its final post-hearing brief, filed Aug. 17, DEA argued that the evidence presented during this summer’s administrative hearing supports removing marijuana from Schedule I and placing it in Schedule III under the Controlled Substances Act.

The central argument is relatively straightforward: marijuana has a currently accepted medical use in the United States and therefore no longer meets the statutory requirements for Schedule I.

That conclusion could have significant consequences for the U.S. cannabis industry if it ultimately becomes federal policy.

DEA Defends the Medical Case for Marijuana

Much of the government’s argument rests on the scientific and medical evaluation conducted by the Department of Health and Human Services and the Food and Drug Administration that led HHS to recommend Schedule III in 2023.

Federal health officials determined that marijuana has currently accepted medical use, including for pain, nausea and vomiting, and anorexia related to a medical condition.

DEA’s brief defends not only that conclusion but also the methodology HHS used to reach it.

A central point of contention throughout the proceeding has been the federal government’s newer two-part approach for determining whether marijuana has a currently accepted medical use.

Rather than relying exclusively on a traditional five-part test, HHS considered whether there is widespread medical experience with marijuana and whether its use is recognized within state-regulated medical systems.

That distinction matters because medical cannabis now operates at a scale that did not exist when many of the federal government’s traditional drug-scheduling standards were developed.

At the time of HHS’ evaluation, more than 30,000 physicians were authorized to recommend cannabis to more than 6 million patients across 38 state medical cannabis programs.

DEA Challenges the Opposition’s Case

The government’s closing argument did more than defend the HHS analysis. It also sought to narrow the weight given to testimony from parties opposing rescheduling.

As Cannabis Business Times reported Wednesday, DEA’s final brief challenged the qualifications, relevance, or scope of testimony from numerous opposition witnesses, arguing in several instances that testimony ventured beyond a witness’s expertise or addressed issues that did not answer the central scheduling question.

The government’s position is that concerns about workplace testing, impaired driving, law enforcement and other consequences of marijuana use do not resolve the question now before the tribunal: whether marijuana has a currently accepted medical use and where it belongs under the Controlled Substances Act.

That does not mean DEA is arguing that marijuana should become federally legal.

Quite the opposite.

The government maintains that marijuana should remain a controlled substance. It argues that Schedule I is no longer the appropriate classification.

That distinction is particularly important as the political debate around rescheduling is frequently mixed with the separate question of federal marijuana legalization.

Some Opposition Testimony May Have Helped DEA

DEA also pointed to testimony from some witnesses called by parties opposing rescheduling to support its own case.

Bertha Madras, a Harvard psychiatry professor and former White House drug policy official called by Smart Approaches to Marijuana, acknowledged evidence of marijuana’s efficacy for neuropathic pain and benefits associated with severe nausea and wasting syndrome, according to the government’s brief.

DEA made similar arguments regarding testimony from pain physician Kenneth Finn, who acknowledged a likely therapeutic benefit from marijuana while raising concerns about dosing and quality controls.

That creates an important distinction in the government’s argument.

Evidence that marijuana carries risks does not necessarily establish that it belongs in Schedule I. The scheduling question instead requires the government to determine whether marijuana has accepted medical use and how its abuse and dependence potential compare with the standards applied to other controlled substances.

DEA argues that the hearing record supports Schedule III under that framework.

What Happens Next?

The Aug. 17 filings mark the end of another major phase of the proceeding.

The hearing began June 29 and concluded July 15 before DEA Chief Administrative Law Judge Derek Julius. DEA and the seven parties opposing rescheduling were then given until Aug. 17 to submit their proposed findings of fact, conclusions of law, and closing arguments.

The focus now moves to Julius and his recommendation.

That recommendation will be an important milestone, but it should not be confused with marijuana automatically moving to Schedule III. Additional administrative steps remain before a broader federal scheduling change can become final, and litigation could follow any eventual rule.

For cannabis investors and operators, however, the government’s closing argument provides something more concrete to evaluate.

DEA is not asking the judge to preserve marijuana’s Schedule I status.

It is asking the tribunal to recommend that marijuana be transferred to Schedule III.

After years in which the rescheduling process has moved forward, stalled, and restarted, the evidentiary argument is now largely complete.

The next question is whether the judge agrees.