By Brett Schuman and Adam Horowitz, Goodwin Procter LLP
The Drug Enforcement Administration opened hearings Monday, June 29, on whether to move cannabis from Schedule I to Schedule III under the 1970 Controlled Substances Act. Every participant DEA invited to testify opposes reclassification; no rescheduling supporter who requested a spot was granted one. That has drawn criticism from industry observers, but the selection process may actually help rescheduling survive the court fights certain to follow.
The hearing does not touch FDA-approved cannabis medicines or the medical cannabis products already shifted to Schedule III under the Justice Department's April 2026 order — a move already being litigated by opponents. It concerns only remaining Schedule I cannabis products, and DEA bears the burden of proving reclassification by a preponderance of evidence.
DEA had listed a pharmacologist whose report linked cannabis to psychosis and cognitive harm as a witness during 2024 hearings, but says it won't call her this time; opponents would have to subpoena her. On June 26, DEA named its own pro-rescheduling witnesses: a physician addressing medical benefits and an FDA official explaining the agency's Schedule III recommendation. Every other invited witness opposes rescheduling, and some have already sued DEA over the medical cannabis reclassification — litigation DEA likely expects to repeat if adult-use cannabis moves schedules. Hearing them out now may shield the rulemaking from later challenge.
DEA regulations require only "interested persons" — those "adversely affected or aggrieved" by the rule — to be given a hearing voice, and DEA has cited that standard in rejecting rescheduling advocates, since the proposal would benefit rather than harm them. Critics note DEA let proponents speak in 2024, but many doubted that hearing would yield a rescheduling recommendation regardless.
Even without proponent testimony, HHS's recommendation, DEA's own analysis, and public comments — many filed by would-be speakers — remain part of the record, bolstered by DEA's two pro-rescheduling witnesses. Since judicial review asks whether an agency acted "arbitrary and capricious," fully accommodating opponents lets DEA later show it weighed all opposition before recommending change.
The hearing's outcome is only a recommendation to the DEA administrator, who can accept or reject it, with the U.S. attorney general potentially making the final call. Given pending litigation over medical cannabis rescheduling, DEA appears to be building a record built to withstand appeal if the administrative law judge favors Schedule III.
Brett Schuman co-chairs Goodwin Procter LLP's cannabis practice; Adam Horowitz is an associate in that practice.
