Rescheduling questions still swirling despite signals from White House

The first quarter of 2024 has come and gone, and with it several cannabis industry predictions that the Biden administration would make a formal marijuana rescheduling announcement by now. Many are now wondering if the federal reclassification will happen at all or if stakeholders got their hopes up for no reason.

Two cannabis policy experts following the situation in Washington, D.C., closely both told Green Market Report on Friday that they’re confident the Drug Enforcement Administration will still ultimately accept the rescheduling recommendation from the Food and Drug Administration and shift cannabis to Schedule III from Schedule I.

Uncertainty reigns

However, both said, timing is simply very uncertain and that there’s likely a messaging disconnect between the White House and the DEA.

“Historically, we’re still in the first inning,” said attorney Shane Pennington, who has made a close study of DEA rescheduling practices. “The fact that they’re not doing it at lightning speed does not shock me.”

Pennington said that while he still wouldn’t be surprised if the DEA issued a new proposed order “tomorrow,” but even that would still only be the starting point for a lengthy legal process to accomplish rescheduling, which could take years.

“I think they can get a proposed rule, potentially, out before the election. Not a final one, but I think they can get the proposal out,” Pennington said. “My point is simply, no matter how you slice it, we have a very long way to go.”

David Culver, senior vice president of public affairs at the U.S. Cannabis Council, added that it’s quite clear that the political signals from the White House have been obviously in favor of rescheduling. But he also noted, as Pennington did, that the decision is up to DEA and not President Joe Biden.

“The president’s campaign politics dictate, in my mind, that we’re going to see a decision before the election, for sure, simply because they’ve already started to focus on the work they’ve done on cannabis reform, and the rescheduling piece of it is going to be the centerpiece,” Culver said.

Culver pointed to Vice President Kamala Harris’s recent high-profile meeting with cannabis reformers and her urging the DEA to move quicker on rescheduling, as well as a mention of marijuana reform in Biden’s proclamation declaring April to be Second Chance Month.

“When that came out, that to me was actually the best evidence I’ve seen to date that this could happen in the month of April,” Culver said of the expected rescheduling announcement from DEA.

But, he acknowledged, the situation is naturally frustrating for stakeholders who have been waiting years for meaningful federal marijuana reform.

“As Tom Petty says – RIP my good friend – but waiting is the hardest part, and we are right in the middle of it right now. I think everybody realizes … we are going to have this rescheduling decision sooner rather than later, at least before the election,” Culver said.

Rumor mill

What’s likely been feeding the rumor mill the past few months of an imminent rescheduling announcement, Pennington said, is the White House itself, which has obviously staked out its policy preference for Schedule III. The DEA, by contrast, is likely taking its time to cross its proverbial t’s and dot its i’s, he said.

“Bottom line is, it’s the White House that’s saying all this, it’s the administration, and I think people are hearing these things from the administration, because the administration is and has been trying to get this done,” Pennington said. “Unless you’re hearing from the career ranks at DEA – which you’re not, or at least nobody I’ve talked to has – then to me it’s a nothingburger.”

Pennington predicted that the DEA will ultimately issue a proposed rule to move marijuana to Schedule III. A public comment period will follow that, and then likely litigation and hearings before administrative law judges.

That means that a final rescheduling resolution – along with possible 280E tax relief – could still be a long ways off, even if the Biden administration has gotten the rescheduling ball rolling.