Skip to content
VapeExperts
News

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

The DEA filed its final brief Aug. 17, asking a judge to recommend Schedule III for all marijuana. Seven opposing groups filed too. Adult-use cannabis stays Schedule I for now.

by Hunter Thomas
DEA Administrator Terrance C. Cole testifies before a Senate Appropriations subcommittee hearing on the fiscal year 2027 budget request in Washington. His agency is urging a judge to back Schedule III status for all marijuana. (Andrew Thomas/CNP/Newscom)

DEA Administrator Terrance C. Cole testifies before a Senate Appropriations subcommittee hearing on the fiscal year 2027 budget request in Washington. His agency is urging a judge to back Schedule III status for all marijuana. (Andrew Thomas/CNP/Newscom)

Key Takeaways

  • DEA asked its judge to recommend Schedule III for all marijuana
  • Seven opposing groups filed final briefs the same day
  • Adult-use cannabis remains Schedule I until a final order
  • Schedule III would not legalize recreational sales or products
  • No deadline exists for the recommendation or the final decision

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]

A multi-story glass and stone office building, the DEA headquarters in Arlington, Virginia, seen behind trees and streetlights on a clear day. | Tony Webster/Flickr (CC BY 2.0)

Photo: Tony Webster/Flickr (CC BY 2.0)

The U.S. Drug Enforcement Administration headquarters stands on Army Navy Drive in Arlington, Virginia. The agency is urging a judge to back Schedule III status for all marijuana.

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]

Physician in white coat consulting with a patient in an exam room, discussing treatment options, no faces identifiable, soft clinical lighting

Photo: VapeExperts/AI

"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]

SHOT + MOMENT: From a second-story window across a narrow street, looking steeply down onto the striped awning of a small recreational...

Photo: VapeExperts/AI

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.

  1. Oct. 2022

    President Joe Biden orders a review of marijuana scheduling.

  2. Aug. 2023

    HHS recommends Schedule III after an FDA-led review.

  3. May 2024

    DOJ publishes the proposed rule to move marijuana to Schedule III.

  4. Dec. 2025

    President Donald Trump orders rescheduling completed expeditiously.

  5. April 2026

    A final order moves only medical marijuana to Schedule III.

  6. July 2026

    An 11-day hearing on broader rescheduling concludes.

  7. Aug. 2026

    DEA and seven opponents file final post-hearing briefs.

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]

Caregiver's hands gently holding an elderly patient's hands in a sunlit care-facility room, blanket and armchair, warm intimate framing

Photo: VapeExperts/AI

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]

Sources

  1. Marijuana Moment↩
  2. Reuters Practical Law↩
  3. Robert A. Mikos analysis↩
  4. Vanderbilt Law School↩
  5. Philadelphia College of Osteopathic Medicine↩
  6. SAMHSA 2025 NSDUH↩

Topics

reschedulingdeaschedule-iiicannabis-policy
Hunter Thomas

About the author

Hunter Thomas

Industry & Policy Reporter

Cannabis policy reporting since 2019 · Contacts in regulatory bodies across 12+ markets · Former trade policy analyst

Hunter covers cannabis regulation, market trends, and legalization across Europe and North America. His reporting draws on direct contact with regulators, manufacturers, and trade analysts in over a dozen markets.

VapeExperts tracks prices daily across 43+ retailers and has independently tested 50+ devices since 2025. Read our editorial standards.

Report an error

Stay up to date

Get the latest vaporizer news, deals, and guides delivered to your inbox.

More News

All news