Cannabis Rescheduling Hearings Postponed: How Did We Get Here and What Happens Next?

By Shawn Hauser, Andrew Livingston

Jan 31, 2025

The much-anticipated hearings on the proposed rulemaking to reschedule cannabis, which were scheduled to begin on January 21, have been postponed for at least three months as a result of an appeal granted by DEA Administrative Law Judge John Mulrooney.  

Vicente partner Shawn Hauser told Law360 in a recent article, "It appears that there is compelling evidence that DEA may be trying to fix this hearing to ensure that marijuana remains in Schedule I or II, which is certainly on brand for DEA." 

Rescheduling cannabis has been a top priority for marijuana patients, physicians, businesses and consumers over the last couple of years. Starting with President Biden’s historic statement on October 6, 2022, the former administration directed Health and Human Services to review marijuana’s status as a Schedule I drug. This unprecedented process has been shaped by a unique and expeditious administrative process with political pressures, a hostile DEA, legal challenges, and the transition to a new administration.  

If marijuana is rescheduled from Schedule I to Schedule III under the CSA, there are some major implications for patients, the medical community, the cannabis industry, and society as a whole. For more on that subject, read “4 Major Implications of Cannabis Moving to Schedule III.”  

With many factors at play informing the potential timeline, including political appointments and an interlocutory appeal that has placed the hearing on hold, there is no precise date for if and when the hearings will resume and when a decision on rescheduling will be made. Still, analyzing the progress on rescheduling so far helps to provide insights into what will happen next. Let’s first examine a timeline of events. 

Marijuana Rescheduling Process Timeline 

October 6, 2022: President Biden ordered an administrative process for the US Department of Health and Human Services (HHS) to expeditiously review marijuana’s classification under federal law. 

August 30, 2023: The HHS recommended to the US Drug Enforcement Administration (DEA) that marijuana be rescheduled from Schedule I to Schedule III under the Controlled Substances Act (CSA) based on its review of data and science. Read: US Officially Recognizes Medical Use and Safety of Cannabis: The Top 6 Things to Know About Schedule III and the Process Ahead 

May 21, 2024: The DEA published its proposed rule related to rescheduling marijuana. The DEA refrained from agreeing or disagreeing with the proposed move to Schedule III, and the DEA Administrator did not sign off on the proposed rule. Instead, in an extraordinarily, the Attorney General signed on behalf of the Department of Justice.  

The proposed rule was published, commencing a 60-day period during which the public could submit comments. Read Cannabis Rescheduling: The DEA's Proposed Rule and the Supporting OLC Opinion

July 22, 2024: The DEA public comment period ended. Public interest was strong, with nearly 43,000 comments submitted, over 92% of which were in favor of reform. The DEA reviewed the comments and determined that a hearing in front of an administrative law judge (ALJ) was warranted. Read: Cannabis Rescheduling: The DEA Public Comment Period is Complete

August 29, 2024: The DEA published its Notice of Hearing on Proposed Rulemaking in the Federal Register and sch scheduled the hearing for December 2, 2024. "Interested Persons" were given 30 days to submit a request to participate in the hearing. Read: Cannabis Rescheduling Hearing Set: What Happens Now? 

September 30, 2024: The submission deadline to request to participate in the hearing passed. DEA Administrator Milgram was to determine the participants, and Chief Administrative Law Judge John Mulrooney was selected to preside over the hearings. 

October 31, 2024: DEA Administrator Milgram submitted to the ALJ a list of 25 “participants” who were selected to participate in the hearing. Many of the individuals and entities selected represented law enforcement and anti-marijuana lobbies. The ALJ filed an order stating that the DEA failed to show that these 25 “designated participants” (DPs) were “interested persons.” 

November 18, 2024: Hemp for Victory and Village Farms International (both DPs) filed a joint motion that sought the immediate disqualification and removal of the DEA from defending the proposed rule, among other things.  

November 27, 2024: The ALJ denied the joint motion from Village Farms International and Hemp for Victory to remove the DEA as proponent. In the order, the ALJ stated, “There is no question that the allegations raised by the EPM [Ex Parte Motion] are distasteful and arguably unhelpful to the public’s perception that the proceedings will be transparent.” 

December 2, 2024: Chief ALJ John Mulrooney presides over the preliminary hearing at the DEA Hearing Facility.  

December 4, 2024: Chief ALJ John Mulrooney issued a Prehearing Ruling, which set the schedule and ground rules for hearings. Starting with a January 21, 2025 hearing, subsequent hearings were scheduled to take place through the first week of March. 

January 6, 2025: Village Farms International and Hemp for Victory jointly filed a Request for Reconsideration of their prior motion to disqualify and remove the DEA from its role as proponent of the proposed rule. The request contained additional evidence of undisclosed conflicts of interest and extensive improper ex parte communications by the DEA, among other things.  

January 13, 2025: The ALJ denied the Request for Reconsideration, finding that the motion did not sufficiently establish the regulatory prerequisites of “a clear error of law, newly discovered evidence, or a need to prevent manifest injustice.”  

However, in the Motion to Reconsider, Village Farms International and Hemp for Victory requested that they be granted leave to file an interlocutory appeal (an appeal to the DEA Administrator) if the relief they sought was denied by the ALJ.  

In the order, the ALJ granted the leave to file an interlocutory appeal, canceled the hearing on the merits that was scheduled to commence on January 21, and stayed proceedings on the matter pending a resolution of the interlocutory appeal to the DEA Administrator. It also ordered that a joint status update be provided 90 days from the issuance of the order and every 90 days thereafter. 

In his ruling, Chief ALJ Mulrooney criticized the DEA over procedural mistakes and made comments related to the allegations against the DEA, noting that “The [Motion to Reconsider] raises additional (admittedly equally appalling) allegations of ex parte communication to one side of the litigation equation by at least one high-level Agency official to an anti-NPRM entity, in an apparent effort by the former to enhance to latter’s chance of selection as a designated participant above others who applied. This arguably disturbing and embarrassing revelation, even credited, still does not demonstrate an “irrevocable taint” that will affect the ultimate outcome of the proceedings.”  

What’s Next for Cannabis Rescheduling? 

The above timeline highlights the complex and contentious nature of the marijuana rescheduling process, which is marked by interagency conflict, procedural irregularities, and allegations of bias.  

For now, the next step is to wait and see while the new presidential administration moves in, the appeal is in process, and the DEA and the movants are given 90 days to provide a joint status update. 

How Might the Trump Administration Affect the Rescheduling Process? 

On the campaign trail, President Trump posted that his administration would support Schedule III and “continue to focus on research to unlock the medical uses of marijuana.” However, his appointee to temporarily lead the DEA as Acting Administrator, retired DEA special agent Derek Maltz, believes the Biden Justice Department “hijacked the rescheduling process, placing politics above public safety.” Until President Trump chooses a permanent DEA Administrator, the process will likely continue to be delayed. As for the leader of the DOJ, President Trump’s pick for Attorney General, Pamela Bondi, declined to provide concrete answers when asked questions related to cannabis policy and the rescheduling process following her confirmation hearing before the Senate Judiciary Committee.  

Stay tuned! 


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