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Rescheduling Timeline and Exclusions
Thursday, June 20, 2024

Advocates of the cannabis industry are understandably excited over the Drug Enforcement Administration’s (“DEA”) recent publication of its proposed rule to reschedule marijuana as a Schedule III controlled substance under the Controlled Substances Act (“CSA”). However, the proposed rule is subject to the due process required by the federal rulemaking regime and will not be officially implemented (if at all) for at least a couple of months, possibly longer. Below we set forth the current timeline of the rulemaking process.

Further, it is helpful to understand what exactly is being rescheduled. We know there are hundreds of cannabinoids, derived from both hemp and from cannabis, and there are manufacturing processes allowing for the creation of synthetic tetrahydrocannabinol (“THC”) and other synthetic cannabinoids. So what’s being rescheduled as Schedule III? We will discuss this below.

Certain Milestones and Timeline

The DEA published its proposed rule in the Federal Register on May 21, 2024. On that date, the 60-day period for public comment began to run and will expire on July 22, 2024. All comments must be received or postmarked by July 22, 2024, to be considered in the DEA review process (60 days actually falls on July 20, 2024, but since it is a Saturday the period is extended to the following Monday). The DEA will promptly review the public comments, but no specific timeline is provided under federal law.

Additionally, special interest groups and members of the public were given the right to request a hearing regarding the proposed rule, or to request participation in a hearing. All such requests were required to be received by the DEA or postmarked by June 20, 2024 (i.e., within 30 days of publication of the proposal in the Federal Register). The DEA will review the requests and grant a public hearing. The DEA will send out a notice of hearing to all parties who submitted requests, which will set a date for the hearing an “appropriate” amount of time in the future and then appoint an Administrative Law Judge (“ALJ”) to preside over the hearing. At this hearing, it is expected that the public comments properly submitted to the DEA will be a primary topic of discussion and debate. The rescheduling of marijuana is expected to undergo immense challenge from special interest groups. The timeline between sending out the notice of hearing and concluding the proceeding is uncertain but could take months.

The process to reschedule marijuana as a Schedule III controlled substance has, thankfully, begun. However, the timeline to its actual implementation will be dictated by the foregoing rulemaking processes and could take a number of months, or possibly longer.

Exclusions from Rescheduling

The DEA’s proposed rule would reschedule marijuana as a Schedule III controlled substance, but notably will not affect classification under the CSA and other federal laws, as applicable, of either (1) hemp or (2) synthetic THC. Hemp is governed by other federal laws, including, without limitation, the Agriculture Improvement Act of 2018 (the Farm Bill), but synthetic THC will remain a Schedule I controlled substance under the CSA.

Synthetic THC, also known as “K2” or “Spice,” is a synthetically manufactured drug designed to mimic the psychoactive characteristics of THC, a naturally occurring cannabinoid in marijuana. This drug is not legally manufactured anywhere in the United States, and is a common street drug with some serious potential side effects, including tachycardia (elevated heart rate), elevated blood pressure, unconsciousness, tremors, seizures, vomiting, hallucinations, agitation, anxiety, pallor, numbness, and tingling. The effects can be similar to those of phencyclidine (“PCP”) and have been known to cause emergency room visits and even death among its users.

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