TOPIC

The Acting Attorney General had good intentions in placing state-legal medical marijuana into Schedule III but, it remains to be seen if the execution will succeed in achieving its goals. The final rule issued in April of 2026 appears flawed for two main reasons:

First, the rescheduling order targeted state-legal programs rather than a specific drug. Under 21 U.S.C. § 811(d)(1), "[i]f control is required by United States obligations under international treaties, conventions, or protocols . . ., the Attorney General shall issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations." The statute contemplates scheduling a drug — not regulating 41 programs defined by state law. The final rule exceeded that narrow statutory mandate.

Second, the DEA exceeded its authority by venturing into territory that belongs to the FDA. Determining what constitutes a medical versus non-medical substance — and whether something qualifies as a "drug" at all — falls outside the DEA's expertise and jurisdiction. That determination belongs to the FDA, and in some instances the United Nations Commission on Narcotic Drugs (see 21 USC 811(d)(2)-(4)). By issuing the rescheduling order without meaningful collaboration with the FDA, the DEA stepped into a role reserved for the nation's health experts.

Second, the DEA exceeded its authority by venturing into territory that belongs to the FDA. Determining what constitutes a medical versus non-medical substance — and whether something qualifies as a "drug" at all — falls outside the DEA's expertise and jurisdiction. That determination belongs to the FDA, and in some instances the United Nations Commission on Narcotic Drugs (see 21 USC 811(d)(2)-(4)). By issuing the rescheduling order without meaningful collaboration with the FDA, the DEA stepped into a role reserved for the nation's health experts.

Had the Attorney General issued a final rule moving marijuana into Schedule III (either under the process that began under the Biden administration or using 811(d)(1)), he could have then issued proposed rules in coordination with Secretary Kennedy. That coordination, in turn, could have allowed HHS/FDA to commence a program in parallel that would validate the state-legal medical marijuana markets. And as you will see throughout our website, a similar process could do the same for adult-use, social  equity, and intoxicating hemp. This would have created a far more durable and legally defensible framework. Instead, the Attorney General acted unilaterally and without proper authority — a decision that undermined the rescheduling effort from the outset.