The U.S. Drug Enforcement Administration (DEA) is facing a minor delay in a crucial hearing initially scheduled for December 2, 2024, regarding the rescheduling of cannabis under federal law. Chief Administrative Law Judge John Mulrooney announced that the hearing on the merits would be pushed to January or February 2025, citing a need for more information about the witnesses slated to testify. The December 2, 2024, hearing will now serve as a preliminary hearing to (i) determine who among the witnesses notified by the DEA (the "Designated Participants") meets the definition of "interested person," i.e., who among the Designated Participants has standing to present testimony and other evidence at the hearing, and (ii) sort out scheduling and other logistical issues for the hearing on the merits early next year.
The delay comes after DEA Administrator Anne Milgram approved more than two dozen Designated Participants to serve as witnesses, but Judge Mulrooney, in his October 31, 2024 order, expressed concerns that the information provided did not clarify whether these witnesses supported or opposed the proposed changes, and perhaps most importantly, failed to establish who, if any, of the Designated Participants qualifies as an "interested person" permitted to testify and present other evidence at the hearing. "Interested person" is defined by DEA regulations as "any person adversely affected or aggrieved by any rule or proposed rule issuable" under 21 U.S.C. 811. In similar standing analyses in federal courts, plaintiffs must show more than just policy disagreements or speculative injuries to demonstrate sufficient interest. Judge Mulrooney further ordered the Designated Participants to file a notice with the ALJ by November 12th to provide notice of appearance of counsel, provide additional details regarding each Designated Participant, and most importantly, provide an explanation as to why such Designated Participant qualifies under 21 U.S.C. 811 as an "interested person" with a showing of how such Designated Participant is "adversely affected or aggrieved" by the proposed rescheduling, as we discussed in a previous blog post.
While this order indicates a minor setback in the timing of the rescheduling process, we hope it reveals the need to ensure that those selected by the ALJ to testify and present evidence do have legal standing to participate in the ALJ hearing, thereby preserving the sanctity and validity of the administrative process by limiting the presentation of evidence to those who are actually adversely impacted by the proposed rescheduling, and thereby excluding individuals or groups with a general grievance or policy disagreement. Until the December preliminary hearing, it will be an open question as to who among the 25 Designated Participants will ultimately be permitted to participate in the hearing on the merits.
The Cannabis Industry Practice Group will continue to cover rescheduling developments, so please contact us if you have questions or concerns or if you would like to be added to our blog's distribution list.
Originally published 04 November 2024
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
