Diverging opinions among legal experts on rescheduling timeline

The U.S. cannabis industry has been whipped into a frenzy over the now-very real prospect that marijuana will be reclassified at the federal level, given President Joe Biden’s announcement last week, but big questions remain about when the process will be completed.

Several well-known cannabis attorneys previously warned that the process could take years, but a competing narrative contends that such concerns are overblown given that Biden apparently recognizes the political value of marijuana reform to his reelection prospects.

And there’s good reason to think that the president will be able to muscle the process to a conclusion before the November election, based on the relative speed with which the administration has moved to date.

The danger, obviously, is that if Biden loses to former President Donald Trump, a new Republican administration could simply call off rescheduling altogether.

That potential outcome, according to Charles Gormally, the New Jersey-based attorney who co-chairs Brach Aichler’s cannabis division, is still quite possible.

“It’s not going to be done before the election,” Gormally unequivocally asserted. “There’s a lot of good reason to think that if Trump comes back in, we’ll dial the whole thing back again.”

Gormally noted that he’s a Democrat, a supporter of Biden’s, and a “cannabis optimist,” but realistically speaking, the DEA won’t have enough time to clear all the procedural hurdles required by federal law before the election.

“There’s going to be hundreds of issues, from who can prescribe, can they prescribe for longer than six months, are you going to limit production, the potency, the type of delivery system, hundreds and hundreds of issues,” Gormally said, adding there will be “litigation thrown in, in between.”

He estimates, “Maybe it gets completed in the next four years or so.”

However, Adam Goers, one of the co-chairs of the Coalition for Cannabis Scheduling Reform and a senior vice president with The Cannabist Co., disagrees.

Goers said the entire rescheduling process can “absolutely” be finalized “before the election,” thus saving it from possible reversal by a Trump administration.

“Nothing about this is normal course, and the timeline that some have laid out is pertinent for normal rank-and-file regulatory process periods,” Goers argued. “Opposite is the case with this process. The president has called for it to be done expeditiously.”

While Goers agreed that it’s likely cannabis reform opponents – such as Smart Approaches to Marijuana (SAM), which is headed by Kevin Sabet – will sue to try to halt the process, Goers thinks such litigation will be forestalled until after DEA finishes implementing a final Schedule III rule in a few months.

“There will be people who litigate on this, and it will be a long process, but I believe that will occur while the industry is enjoying the status of Schedule III,” Goers predicted.

The reality is likely somewhere in between the two positions, said Michigan-based cannabis attorney Lance Boldrey, who leads the cannabis practice at Dykema law firm.

“I’m not confident that it will get wrapped up before the election, but it is possible for that to occur,” Boldrey said of rescheduling. The biggest “wild card” will come after the DEA publishes its final rescheduling rule, which could come prior to November.

It’s at that point that Smart Approaches to Marijuana or other similar anti-cannabis groups may sue, and it would be up to a district court judge to decide whether to issue a court order pausing implementation.

“Those opposing the rule would have to file a motion asking them to stay the administrative action, which typically courts will do, but not in all cases. And in this case, the test is really similar to the test for injunctive relief, for whether a stay will be granted: What’s the relative balance of the injury to SAM or other groups opposing the rule versus the potential injury to the public by delaying?” Boldrey explained.

“Most importantly, how likely is the plaintiff to succeed? And that’s one where (plaintiffs like SAM) may have an uphill battle here. This is fundamentally a battle of the experts, and HHS has the experts on their side, as does DEA,” Boldrey said.

The bottom line, Boldrey said, is that the rescheduling finalization is not the slam dunk that many industry insiders hope it is, and still could be reversed by a new Trump administration if it’s not completed during Biden’s current term.

By the same token, Boldrey pointed out, “Getting (rescheduling) done before the election would be very aggressive, but it is absolutely something that is a possibility.”