The hearing on broader cannabis rescheduling was awaiting the judge’s recommendation. Three of the seven outside parties the DEA let in have paused it with a government report that never evaluates cannabis on the merits.
The DEA’s chief administrative law judge has stayed the broader cannabis rescheduling proceeding as it awaited his recommendation, after three parties that oppose the change asked him to add a new government report to the hearing record.
Judge Derek Julius issued the stay on Tuesday at the request of the drug-testing trade group NDASA, the organization DUID Victim Voices and Dr. Kenneth Finn. They are three of the seven outside parties the DEA allowed into the hearing, and all seven oppose rescheduling. The report they want added, published by the Government Accountability Office on September 23, found significant gaps in the DEA’s and the FDA’s written policies and procedures for scheduling drugs. It reaches no conclusion about cannabis.
“Accordingly, based on the nature [of] this Motion, it is ORDERED that this matter is STAYED pending the Motion’s resolution,” Julius wrote. He gave the DEA until October 13 to argue whether the record should be reopened, in no more than 20 pages, and told the remaining parties they may respond but are not required to.
Until Tuesday, the next expected step was for Julius, who sat through eleven days of testimony that ended in July, to issue his recommended decision. Many in the industry expected it before the November 3 midterms.
What the report actually found
The GAO report runs 31 pages and is titled “Drug Scheduling: While DEA Decisions Have Aligned with Recent HHS Recommendations, Both Need Comprehensive Policies.” Most of the coverage this week has focused on the second half of that title. The first half is the part the movants have to get past.
The GAO examined 208 substances for which the DEA took scheduling actions between 2020 and 2025. Health and Human Services evaluations were required for 95 of them, and the DEA considered them in all 95. Of those, 84 had reached a final scheduling decision by the end of 2025, and the DEA aligned with HHS in all 84. The other 11 were still under extended temporary scheduling orders.
What the auditors did find is that both agencies have gaps in their written procedures for how staff do the work. The DEA lacks policies identifying roles, responsibilities and procedures for data collection before rulemaking, new drug application scheduling, three-factor analyses for temporary scheduling, eight-factor analyses for placement, and how to weigh HHS recommendations. The FDA lacks procedures specifying how its own scientists conduct evaluations and develop recommendations. The GAO’s concern is continuity: without comprehensive written procedures, the process depends on the people who happen to hold the jobs.
The report does not evaluate cannabis on the merits. It mentions marijuana and the current rescheduling effort, but it conducts no cannabis-specific eight-factor analysis, makes no finding on accepted medical use and recommends nothing about where the plant belongs. Its three recommendations are that the DEA write policies, that the FDA write policies, and that the FDA and NIH update a memorandum of understanding.
The movants argue that none of that matters. According to Marijuana Moment, which reviewed the motion, they wrote that the government’s case for Schedule III is “only as good as the process that produced it” and that the watchdog’s findings show the government “lacks written criteria for a finding it must make” to move cannabis.
Who was allowed to make that argument
The DEA admitted only outside participants opposed to rescheduling into the hearing, as High Times reported in July. At least some supporters who applied were told that they did not qualify as an “interested person” because they were not “adversely affected or aggrieved by any rule or proposed rule issuable.”
So the seven nongovernment designated participants were all on one side. Three of them have now used that access to stop the clock, and when Julius invited the remaining designated parties to respond to the motion, he was inviting the other four, who are also opponents. No pro-rescheduling outside party was admitted as a designated participant, which means none is among the parties the judge asked to weigh in.
The government is the only party in the hearing arguing the other way, defending the proposed rule to move cannabis to Schedule III. In its final brief, it told the judge that cannabis “no longer fits the statutory requirements for Schedule I,” that more than 30,000 practitioners are treating over six million patients across 43 jurisdictions, and asked him to “expeditiously recommend” the move.
Why a procedural argument has traction here
The process complaint is not coming from nowhere, and the opponents know it. During the hearing in July, DEA pharmacologist Luli Akinfiresoye testified under subpoena that the agency never conducted its own eight-factor analysis before the Justice Department published the proposed rule in 2024. As Cannabis Business Times reported, she said she and colleagues in the Drug and Chemical Evaluation Section later produced an unofficial one, in a December 2024 document titled “Marijuana: Scientific Knowledge,” because the proposed rule “had gaps in data.”
“Ideally, when we publish an NPRM, we also publish an eight-factor analysis,” she said. “In this case, that did not happen because one was not done.”
An audit finding that the DEA has no written procedure for conducting eight-factor analyses lands differently next to sworn testimony that it skipped one.
The calendar
Testimony ended July 15 and more than 2,500 pages of transcripts were released August 25. There is no fixed statutory deadline for Julius to issue his recommendation, only a DEA regulation telling him to prepare it “as soon as practicable.”
That window is now considerably narrower. The DEA does not have to wait until October 13 to file. As Shawn Collins, the former executive director of the Massachusetts Cannabis Control Commission, noted in his newsletter Policy, Decoded, an early filing would be the clearest sign the administration still wants a rule before Election Day, and taking the full time makes one very hard to see. Even if Julius denies the motion outright, he still has to issue his recommended decision. The parties then have 20 days to file exceptions before the record is certified to the DEA administrator, who issues the final agency decision. If the judge orders full briefing on the report instead, Collins expects the recommendation alone to slip into 2027.
One thing the stay does not touch: the April order that moved FDA-approved cannabis products and cannabis covered by qualifying state medical licenses to Schedule III. That order remains in effect while separate challenges proceed in the D.C. Circuit. What Julius froze is the proceeding covering marijuana outside those categories under the Controlled Substances Act.
