Rescheduling Opponents Attack Medical-Use Test at DEA Hearing

The legal core of the federal government’s cannabis rescheduling case came under direct fire on the second day of the Drug Enforcement Administration’s hearing, as lawyers for marijuana-reform opponents zeroed in on the medical-use standard the government used to justify moving cannabis out of Schedule I.

Their argument is procedural. Federal officials, they say, changed the test for what counts as accepted medical use partway through their review — and cannabis clears the new standard only because it is easier to meet than the one it replaced.

The standard under attack

Under federal law, a drug with a currently accepted medical use cannot sit in Schedule I, the most restrictive tier of the Controlled Substances Act. For years, the government measured medical use with a five-part test: whether a drug’s chemistry was known and reproducible, whether adequate safety studies existed, whether controlled trials proved it worked, whether qualified experts accepted it, and whether the supporting evidence was widely available.

Cannabis had never passed that test. When the DEA last denied rescheduling petitions in 2016, the Department of Health and Human Services agreed the plant belonged in Schedule I, finding it had a high potential for abuse, no accepted medical use, and no established safety for use under medical supervision.

The 2023 review that produced the current rescheduling proposal used a different yardstick. HHS applied a simpler two-part inquiry — whether licensed health-care providers already use the drug medically under state programs, and whether credible scientific support exists for at least one condition it treats. Measured that way, HHS concluded cannabis does have accepted medical use and recommended Schedule III in August 2023, the finding that anchors the government’s proposed rule.

Opponents — the only outside parties the DEA invited to the hearing — call that switch a results-driven move designed to reach a predetermined answer, pressing the government’s scientists over why they reached for a new standard once the old one stood in the way.

Why the switch is already settled

The complaint is not new, and neither is the government’s answer. In an April 2024 opinion, the Justice Department’s Office of Legal Counsel concluded that the DEA’s longtime five-part approach was “impermissibly narrow,” and that the two-part inquiry is “sufficient to establish that a drug has a ‘currently accepted medical use’ even if the drug would not satisfy DEA’s current approach.”

That conclusion undercuts the point opponents spent the day trying to score. The government’s own legal foundation already concedes that cannabis would not clear the retired five-part standard — which is precisely why the Office of Legal Counsel discarded it. What reform opponents present as a damaging admission is, in the government’s account, simply how the case was built.

The opinion also constrains the DEA. Its conclusions bind the executive branch, including the DEA and the judge presiding over the hearing, so the legality of the two-part test is not something this proceeding can reopen. The agency remains the formal proponent of the rule and carries the burden of proof, but it must give HHS’s scientific and medical findings significant deference — a limit the DEA, long resistant to rescheduling, cannot maneuver around.

For all that, the analytical switch remains the most promising target opponents have. It is a line of attack that also runs through the lawsuits already consolidated before a federal appeals court, where challengers are trying to halt the rescheduling outright.

A one-sided hearing on a tight clock

The hearing’s design gives those arguments a clear runway. DEA Administrator Terrance Cole invited only reform opponents to participate as designated parties — a roster that includes the prohibitionist group Smart Approaches to Marijuana and the attorneys general of Idaho, Indiana, and Nebraska — after ruling that reform supporters did not qualify as parties harmed by the outcome. Reform advocates were shut out, and the sessions are not being livestreamed.

The government is making its case through two witnesses, a federal drug-safety scientist and a physician, as it began on the opening day. Much of the second day turned on cross-examination of the government’s scientist over the medical-use standard, though with no public transcript yet released, the exchanges are known only through accounts from people in the room.

The proceeding runs through July 15, 2026, on the expedited timetable President Trump set in December 2025 when he ordered the Justice Department to finish the rescheduling rulemaking. The hearing takes up the broader question of where marijuana belongs; an earlier order this year already shifted state-licensed medical marijuana and FDA-approved cannabis products into Schedule III, delivering the tax relief and federal recognition that medical operators had pursued. What is at stake here is whether the rest of the market — the much larger adult-use market — eventually gets the same treatment.

Whatever the administrative law judge recommends when the hearing ends, the final call rests with the DEA administrator. And the medical-use standard opponents spent the week attacking is, for now, the government’s settled legal ground.