It's possible that the DEA could publish a final rule as early as August, but there are several factors that could still stretch the timeline out.
The federal marijuana rescheduling process is far from complete, and major questions over the timeline still loom large over the U.S. cannabis industry. That was the sentiment from a bevy of legal experts and industry insiders during several panels at a gathering of the International Cannabis Bar Association in Chicago last week.
“We don’t know what’s going to happen. The only thing we’re certain about today is that we’re uncertain about what’s going to happen,” said Kelly Fair, a San Francisco-based cannabis attorney, during a panel focused on the proposal to move marijuana to Schedule III from its current status on Schedule I.
Fair noted that it’s still quite possible that the U.S. Drug Enforcement Administration could decide to move quickly and publish a final rescheduling rule in the federal register as early as next month.
“In the best scenario, there’s a final rule that gets announced in August,” Fair said. “It just happens to have kicked off at a time that it would be defensible to wrap up rulemaking within six months, which is right before the election. So keep the election on the board.”
But that six-month timeframe is “unbelievably amibitious,” said Robert Tobiassen, president of the National Association of Beverage Importers and former chief counsel for the Alcohol and Tobacco Tax and Trade Bureau.
“Everything in D.C. is baby steps. Nobody thinks long term,” Tobiassen said. “There are so many unknowns here.”
Tobiassen steadfastly refused to speculate on timing for either rescheduling completion or a possible new federal crackdown by the Department of Justice based on Schedule III rules, given all the various political, legal and procedural factors he said are at play. He also suggested that if Vice President Kamala Harris wins the White House, she might take a more aggressive cannabis enforcement approach than expected, given her former role as California’s attorney general.
When another lawyer at the conference tried to get an answer on when a new enforcement push may materialize, Tobiassen responded, “Ask me your question on Nov. 8. If Mr. Trump is elected … then I think come noon on Jan. 20, 2025, there will be a fairly strong enforcement effort out there. On the other hand, if Vice President Harris … wins the election, she still is a law-and-order person, and I think people are underestimating what that background means.”
All that said, Fair and others noted, there’s been no real communication from the DEA as to how fast it intends to move, and the agency has nearly 43,000 public comments on rescheduling to digest before it can proceed.
It’s also still up in the air as to whether the DEA will hold any administrative hearings prior to publishing a final rule or if any cannabis opponents may succeed in challenging the process in court. The latter move, however, could prove difficult for opponents such as Smart Approaches to Marijuana (SAM), the anti-cannabis group led by Kevin Sabet, which has promised an attempt to block rescheduling.
While cannabis industry advocates have repeatedly emphasized that rescheduling would be a financial boon by nullifying the impacts of 280E – the federal tax code provision that prohibits marijuana companies from claiming standard business deductions – if Democrats lose the White House in November, a new Donald Trump administration is likely to simply cancel rescheduling entirely if it’s not concluded by January.
That potential is still very real, said attorney Michael Joseph Heaton, who also works as a cannabis lobbyist in Washington, D.C.
“A Harris-whoever administration … would probably be, I think, more aggressive than the current Biden administration” in supporting federal cannabis reform, Heaton said. “The other side of that coin is a Trump-Vance administration, where we probably will see most of this go away.”
Heaton also said that the rescheduling process is only the beginning of federal marijuana reform, and advocates need to keep both feet on the gas – likely for years to come. He noted that Republican opponents of rescheduling have increasingly tried to use backdoor methods through Congressional appropriations to halt rescheduling, including the introduction of amendments to withhold funding for the move.
That means cannabis reform also may hinge on which party controls both the House and Senate after the November election, Heaton said.
“If an agency does not have the funding to implement rescheduling, they can’t do the rescheduling process,” Heaton said. “Not to throw water on the party we’re all having with rescheduling, but I do think there’s a lot that can come between now and, really ad nauseum, for years to come on how this is actually implemented.”
John Schroyer
John Schroyer has been a reporter since 2006, initially with a focus on politics, and covered the 2012 Colorado campaign to legalize marijuana. He has written about the cannabis industry specifically since 2014, after being on hand for the first-ever legal cannabis sales on New Year’s Day that year in Denver. John has covered subsequent marijuana market launches in California and Illinois, has written about every aspect of the marijuana trade, and was part of the team that built the cannabis industry’s first-ever trade show, MJBizCon. He joined Green Market Report in 2022.
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