DEA Makes Its Final Case to Move All Marijuana to Schedule III as Briefs Close

The fight over rescheduling all marijuana, not just medical marijuana, is now in a judge's hands. On Aug. 17, the Drug Enforcement Administration and seven opposing participant groups filed their final post-hearing briefs, closing the last scheduled round of argument after an 11-day evidentiary hearing held June 29 to July 15.^[1]

DEA's brief asks Chief Administrative Law Judge Derek C. Julius to recommend moving marijuana generally from Schedule I to Schedule III, and to do so "expeditiously." That would extend the April order, which moved only FDA-approved marijuana drugs and qualifying state medical marijuana, to cover adult-use cannabis too.^[1]

Nothing has changed yet. Adult-use cannabis remains Schedule I, Julius has not issued his recommendation, and DEA Administrator Terrance Cole has not made a final decision.^[2]

DEA says marijuana no longer fits Schedule I

DEA's argument tracks the 10-month scientific review by the Department of Health and Human Services, which it says deserves "significant deference." The brief cites more than 30,000 practitioners, more than six million patients and medical use across 43 U.S. jurisdictions.^[1]

"Marijuana no longer fits the statutory requirements for Schedule I because it has a currently accepted medical use within the United States and it has an accepted safety for its use under medical supervision," the agency wrote.^[1]

DEA also argued that marijuana's abuse potential and dependency profile align most closely with substances already in Schedule III. The brief attacked the reliability of several opposition witnesses and said their own testimony acknowledged therapeutic use in some circumstances.^[1]

Opponents say the government moved the goalposts

The seven opposing participants include Smart Approaches to Marijuana, the states of Idaho, Indiana and Nebraska, the Tennessee Bureau of Investigation, the National Drug and Alcohol Screening Association, DUID Victim Voices with Kenneth Finn, and pharmacist Phillip Drum.^[1]

"This Tribunal should reject the Government's attempt to supplant the standards of the Controlled Substances Act and decades of agency precedent with newfound standards dreamt up only for this proceeding," SAM and the three states wrote.^[1]

The Tennessee bureau pointed to diversion, violent crime and impaired-driving deaths. NDASA argued Schedule III would undermine federally mandated employee testing, though employment-law analysts note that is a litigating position: Schedule III would not by itself require employers to drop drug-free-workplace rules. Drum argued variable botanical products with uncertain dosing fail normal pharmaceutical standards.^[1]

Schedule III would cut taxes, not legalize vapes

For adult-use consumers, the stakes are narrower than the headlines suggest. A Schedule III listing would not legalize recreational possession or sales, would not grant FDA approval to a single state-market cartridge, and would not authorize interstate shipment.^[2]

The main immediate change would be tax treatment. Internal Revenue Code Section 280E denies ordinary business deductions to companies trafficking in Schedule I or II substances. Move all marijuana to Schedule III, and adult-use growers, manufacturers and dispensaries fall outside its text, freeing up cash that could fund lower prices, testing or product development. None of those consumer outcomes is guaranteed.^[3]

The stakes for vapers are not small. In the 2025 National Survey on Drug Use and Health, 39.2% of past-year cannabis users reported vaping and 14.5% reported using dabs, wax or concentrates.^[6] And the April medical-only order left most of the market untouched: Vanderbilt law professor Robert A. Mikos calculates that adult-use sales made up nearly 90% of Colorado's roughly $1.3 billion 2025 market, up from 66% a decade earlier.^[3]

We covered the April split and the litigation it triggered in our earlier reporting on the D.C. Circuit challenges and the hearing's next steps.

Researchers see an opening, and a funding gap

Medical researchers say the scheduling question matters most for science. Katherine E. Galluzzi, professor and chair of geriatric and palliative medicine at the Philadelphia College of Osteopathic Medicine, said Schedule I limits her field to observational studies.^[5]

"If it becomes Schedule III, that will be a big step forward," Galluzzi said. What researchers need to determine, she added, is "which treatments are most effective, what safe use looks like, and where the threshold for unacceptable side effects lies."^[5]

A 2026 New England Journal of Medicine article by Rebecca Haffajee, Mikos and Ziva Cooper adds a warning: rescheduling lowers regulatory barriers but does not pay for trials. "Rescheduling can accomplish its primary purpose of generating clinically meaningful data only if the U.S. Congress and executive branch allocate more funding for doing that work," they wrote.^[4]

No deadline, and no guarantee

The process from here runs through Julius, who will finalize the record and issue a nonbinding recommended decision. Participants then have 20 days to file exceptions before the record goes to Cole, who may accept, modify or reject the recommendation. No statutory deadline binds either step, and losing participants are likely to seek judicial review.^[1]

Mikos, writing on Aug. 19, argued the administration's own April order cuts against a broader move: its treaty rationale for stopping at medical marijuana may conflict with a later decision to reschedule everything.^[3]

His bottom line is blunt. "In short, DEA's proposal to reschedule all marijuana may never become law under the current administration," Mikos wrote. The agency that just spent 50 pages arguing for Schedule III now has to convince its own judge, and then itself.^[3]