Feds Will Release Marijuana Rescheduling Memo And Related Documents ‘In Their Entirety’ In Response To Lawsuit

The Department of Health and Human Services (HHS) has agreed to release documents related to its recommendation to federally reschedule marijuana “in their entirety” amid litigation over a Freedom of Information Act (FOIA) request that was filed by a lawyer last year.

“Good afternoon and thank you for your patience,” a Department of Justice attorney handling the case said in an email to attorney Matt Zorn on Thursday. “The agency has advised that it will release the letter and its enclosures in their entirety.”

Zorn posted a screenshot of the email on his blog, noting that the release could mean that “rescheduling is imminent—or not.”

When the government announces a marijuana rescheduling through a Federal Register notice, he pointed out, it would “attach the letter and its enclosures” to that posting.

Zorn last month obtained more than 250 pages of the rescheduling advisory letter and supporting documents sent by HHS to the Drug Enforcement Administration (DEA) last year, though the vast majority were released only in highly redacted form.

In a phone interview with Marijuana Moment, Zorn said the new development comes after a “little scuffle” with the federal government over the timeline in his FOIA lawsuit. The Justice Department had filed a motion to vacate a deadline for summary judgement that was set for January 18, and while Zorn said he would typically accept such a request, he instead filed an opposing brief and the judge ultimately denied the government’s motion.

He added that, “realistically, the lawsuit could have accelerated” the timing of the government’s scheduling announcement, though it’s also possible that just the letter will be released without DEA immediately announcing a decision in the ongoing scheduling review.

In October, HHS released a highly redacted version of the one-page letter from the health agency to DEA in response to public records requests by news organizations such as Marijuana Moment and lawyers, including Zorn.

Shane Pennington, a lawyer who co-writes the On Drugs blog with Zorn, applauded his colleague’s work in pushing for the documents to be released.

“Matt has demonstrated once again that litigation is a powerful tool for unlocking doors, solving problems, and doing the ‘impossible,’” he told Marijuana Moment in an email. “I’m proud to work with him on On Drugs and so many other projects.”

Broadly, the documents are believed to discuss new scientific information that’s come to light in recent years, which HHS suggests might necessitate rescheduling marijuana.

HHS initially sent the rescheduling memo to DEA in August of last year, reportedly advising the government move cannabis to Schedule III of the federal Controlled Substances Act (CSA), alongside drugs like ketamine and Tylenol with codeine.

With the rescheduling recommendation now in DEA’s hands, many are watching closely for updates.

While the Congressional Research Service (CRS) recently concluded that it was “likely” that DEA would follow the HHS recommendation based on past precedent, DEA reserves the right to disregard the health agency’s advice because it has final jurisdiction over the CSA.

Recently, DEA reiterated in a letter to Congress that it has “final authority” on rescheduling decisions, regardless of the health agency’s recommendations.

“DEA has the final authority to schedule, reschedule, or deschedule a drug under the Controlled Substances Act, after considering the relevant statutory and regulatory criteria and HHS’s scientific and medical evaluation,” it says. “DEA is now conducting its review.”

The agency’s statement came in response to an earlier letter from 31 bipartisan lawmakers, led by Rep. Earl Blumenauer (D-OR), that implored DEA to consider the “merits” of legalization as it carried out its review. That initial letter also criticized the limitations of simply placing cannabis in Schedule III, as opposed to fully removing the plant from CSA control.

Also recently, the governors of six U.S. states—Colorado, Illinois, New York, New Jersey, Maryland and Louisiana—sent a letter to President Joe Biden urging the administration to reschedule marijuana by the end of this year.

“Rescheduling cannabis aligns with a safe, regulated product that Americans can trust,” says the governors’ letter, which points to a poll that found 88 percent of Americans support legalization for medical or recreational use. “As governors, we might disagree about whether recreational cannabis legalization or even cannabis use is a net positive, but we agree that the cannabis industry is here to stay, the states have created strong regulations, and supporting the state-regulated marketplace is essential for the safety of the American people.”

The office of Colorado Gov. Jared Polis (D), who led the group letter, said rescheduling “will not only alleviate the financial and safety concerns for businesses but allow a thriving industry to play a full role in the American business environment.”

One of the first state officials to react to the HHS rescheduling recommendation, Polis told Biden in an earlier letter in September that while he expects DEA will “expeditiously” complete its review and move marijuana to Schedule III, the policy change must be coupled with further administrative and congressional action to promote health, safety and economic growth.

Meanwhile, six former DEA heads and five former White House drug czars sent a letter to the attorney general and current DEA administrator voicing opposition to the top federal health agency’s recommendation to reschedule marijuana. They also made a questionable claim about the relationship between drug schedules and criminal penalties in a way that could exaggerate the potential impact of the incremental reform.

Signatories include DEA and Office of National Drug Control Policy heads under multiple administrations led by presidents of both major parties.

Two GOP senators, including the lead Republican sponsor of a marijuana banking bill that cleared a key committee last month, recently filed new legislation to prevent federal agencies from rescheduling cannabis without tacit approval from Congress.

A coalition of 14 Republican congressional lawmakers, meanwhile, is urging DEA to “reject” the top federal health agency’s recommendation to reschedule marijuana and instead keep it in the most restrictive category under the CSA.

Kyle Jaeger contributed reporting to this story.

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Photo courtesy of Carlos Gracia.