Here’s the introduction
Jennifer Fisher is a partner in Goodwin’s Complex Litigation & Dispute Resolution practice, and a co-chair of the firm’s Cannabis practice. Jessica Huang is an associate in Goodwin’s Complex Litigation & Dispute Resolution practice and a member of the firm’s Cannabis practice. Brett Schuman is a partner and the co-chair of Goodwin’s Intellectual Property Litigation practice, and a co-chair of the firm’s Cannabis practice.
2024 was another busy and interesting year of legal and political developments for cannabis. Here are some key issues and must-watch cases for the year ahead.
- Rescheduling Hearing Delayed
Although many had hoped rescheduling would be completed by the end of the year, that was not meant to be. Following the Justice Department’s May 21, 2024, proposal to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA) after scientific review, the Drug Enforcement Administration (DEA) set a rescheduling hearing for Dec. 2, 2024, to gather additional expert input. However, in October, DEA Chief Administrative Law Judge (ALJ) John Mulrooney issued a preliminary order indicating that the information about the proposed participants was insufficient, in part because “there [was] no indication in the four corners of the [participant list] as to whether the ‘participants’ support or oppose the [notice of proposed rulemaking] or how the ‘participants’ satisfy the ‘interested person’ definition set forth in the regulations.”
Judge Mulrooney delayed the evidentiary hearing on the merits of the rescheduling proposal into 2025. Then some interesting motions were filed, including one on behalf of Hemp for Victory and Village Farms International, pro-cannabis non-profits that had been invited to participate in the hearing, which disputed the DEA’s role as a “proponent” of the rescheduling rule and sought its removal from that position. The motion raised concerns about the agency’s impartiality by pointing to its strong opposition to the rescheduling proposal despite the Department of Health and Human Services’ recommendation. It also alleged engagement in unlawful ex parte communications with anti-cannabis group Smart Approaches to Marijuana. Although Judge Mulrooney denied the motion, he did so on the grounds that it was statutorily beyond ALJ authority to grant removal of the DEA, but noted, “[t]here is no question that the allegations raised by the [motion] are distasteful and arguably unhelpful to the public’s perception that the proceedings will be transparent.” To date, the DEA’s legal counsel has not clarified where the agency stands on rescheduling. Judge Mulrooney has asserted that the DEA has no obligation to be a “cheerleader” for the proposed rule and has been careful to state that the issues before him are “narrow” and he is not deciding whether cannabis is “good” or “bad.”
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