What’s Going On With Marijuana Rescheduling? Where the Federal Process Stands and What Happens Next

(Photo credit: Craig Barker Photography).

The federal marijuana rescheduling process has changed substantially in 2026, but it is not finished.

After years of review, delays and competing legal arguments, the Drug Enforcement Administration (DEA) in July completed an 11-day administrative hearing on whether marijuana should broadly be moved from Schedule I to Schedule III of the Controlled Substances Act. Final written arguments were submitted in August, and the case is now awaiting a recommendation from the judge who presided over the hearing.

A separate Justice Department action that took effect in April already moved certain marijuana into Schedule III, including marijuana subject to qualifying state medical marijuana licenses.

The result is an unusual federal framework in which some marijuana is already classified as Schedule III while the broader question of whether the remainder should receive the same classification remains unresolved.

As of September 21, DEA has not announced a final decision, or even the administrative law judge’s recommendation, on the broader proposal. The agency’s current rescheduling page continues to list the completed hearing transcripts and procedural orders, with no recommended decision posted.

The current process dates to October 2022, when then-President Joe Biden directed the Department of Health and Human Services (HHS) and the attorney general to conduct an administrative review of marijuana’s status under federal law.

Following an extensive scientific and medical analysis, HHS recommended in August 2023 that marijuana be transferred from Schedule I to Schedule III.

The agency concluded that marijuana has a currently accepted medical use in the United States, has a lower potential for abuse than substances in Schedules I and II, and can produce moderate or low physical dependence or high psychological dependence, findings consistent with the statutory criteria for Schedule III. HHS’s full scientific and medical review

That recommendation represented a major departure from previous federal reviews. In 2016, HHS had concluded that marijuana should remain in Schedule I because it lacked a currently accepted medical use and met the other requirements for the classification.

A subsequent Justice Department Office of Legal Counsel review also concluded that DEA’s previous method for determining whether a substance has a currently accepted medical use was too restrictive. The office found that the approach developed by HHS could lawfully establish accepted medical use and that DEA must give significant deference to HHS’s scientific and medical findings. It also concluded that international treaty obligations do not require marijuana to remain in Schedule I or II.

On May 21, 2024, the Department of Justice formally proposed transferring marijuana from Schedule I to Schedule III. The proposal did not itself change marijuana’s legal status; it started the federal rulemaking process required before such a change could take effect.

Nearly 43,000 public comments were eventually submitted, with over 90% either in favor of rescheduling, or in favor of going even further by fully descheduling cannabis.

DEA initially scheduled an administrative hearing on the proposal, with proceedings expected to begin in late 2024 and testimony scheduled for early 2025.

That process became bogged down in procedural disputes involving the parties selected to participate, allegations concerning DEA’s handling of the proceeding and an interlocutory appeal.

In January 2025, the administrative law judge overseeing the case stayed the hearing while the appeal was considered. The proceeding remained stalled for the rest of the year, and the judge overseeing it later retired from federal service.

That left the proposed rule technically alive but with no completed hearing, no recommendation and no final decision.

The situation changed after President Donald Trump signed Executive Order 14370 on December 18, 2025.

The order directed the attorney general to “take all necessary steps” to complete the Schedule III rulemaking “in the most expeditious manner in accordance with Federal law.” Trump’s order cited the HHS findings on marijuana’s medical use and called for expanded federal research involving both marijuana and cannabidiol (CBD).

On April 28, the Justice Department took an action that is sometimes confused with the still-pending broader rescheduling proceeding.

Acting Attorney General Todd Blanche issued a final rule moving two categories of marijuana into Schedule III immediately: marijuana contained in Food and Drug Administration (FDA)-approved drug products and marijuana subject to a state-issued license to manufacture, distribute or dispense marijuana for medical purposes.

The order took effect April 28.

The rule also established a federal registration pathway for state-licensed medical marijuana businesses. State credentials can be used to demonstrate state authorization, although businesses remain subject to federal registration and other Controlled Substances Act requirements.

The rule had another potentially significant consequence: Section 280E of the Internal Revenue Code applies to businesses trafficking in Schedule I or II controlled substances. The Justice Department said in the rule that holders of state medical marijuana licenses would no longer be subject to the 280E deduction restriction as a consequence of the scheduling change, while cautioning that the order itself is not a determination of any individual business’s federal tax liability.

But the April action did not broadly reschedule marijuana.

The Justice Department explicitly said marijuana outside FDA-approved products and state medical marijuana licenses remains Schedule I. That means marijuana associated solely with recreational or adult-use activity remains in Schedule I while the broader proceeding continues.

At the same time, the Justice Department terminated the stalled 2024-2025 hearing proceeding and launched a new, accelerated hearing process to decide whether the remainder of marijuana should also move to Schedule III.

The new administrative hearing began June 29 at DEA headquarters and continued through July 15.

Chief Administrative Law Judge Derek C. Julius presided over 11 hearing days covering testimony and evidence on marijuana’s accepted medical use, abuse potential, dependence risks, public health consequences, impaired driving, state regulatory systems and other issues relevant to federal scheduling.

The federal government defended the proposed Schedule III classification.

Outside participants included Smart Approaches to Marijuana, the National Drug & Alcohol Screening Association, the Tennessee Bureau of Investigation, DUID Victim Voices, physicians Kenneth Finn and Phillip Drum, and the states of Nebraska, Idaho and Indiana. Those parties opposed rescheduling or challenged aspects of the government’s case.

DEA has since released the complete corrected transcripts from all 11 hearing days.

After testimony concluded, Julius allowed the parties to submit post-hearing briefs containing closing arguments and proposed findings of fact and conclusions of law.

Those briefs were due August 17.

The government used its final brief to make clear that it continues to support the proposed change.

“Marijuana most appropriately belongs in Schedule III because its abuse potential and dependency profile most align with those substances in Schedule III,” federal attorneys argued in the filing.

The government asked Julius to recommend transferring marijuana from Schedule I to Schedule III.

Central to that argument is HHS’s finding that marijuana has a currently accepted medical use in the United States. Schedule I, by statute, is reserved for substances determined to have no currently accepted medical use, along with a high potential for abuse.

Federal attorneys also argued that marijuana’s abuse and dependence profile more closely resembles Schedule III substances than drugs currently placed in Schedule I or II.

Opponents challenged those conclusions from several directions.

Some argued that HHS placed too much weight on state medical marijuana programs and insufficient weight on risks involving impaired driving, mental health, youth access and diversion. Others questioned whether the wide variety of marijuana products currently available can appropriately be treated as having an accepted medical use without going through the traditional FDA drug-approval process.

The Marijuana Herald previously published a detailed breakdown of the government and opposition briefs following their August filing.

The evidentiary portion of the proceeding is over.

The witnesses have testified. The transcripts have been corrected and released. The parties have submitted their final written arguments.

The case is now with Julius.

Under DEA regulations, the presiding administrative law judge must prepare a report containing recommended rulings on the parties’ proposed findings, his own recommended findings of fact and conclusions of law, and a recommended decision.

The regulations say that report must be prepared “as soon as practicable” after the period for post-hearing submissions expires. They do not establish a specific number of days in which the judge must act.

That means there is currently no statutory or regulatory deadline requiring Julius to issue his recommendation by a particular date.

More than a month has now passed since the August 17 briefing deadline, but that does not mean DEA has missed a legal deadline.

Julius will not make the final decision.

His report will recommend what DEA should ultimately do and will include findings of fact and legal conclusions based on the administrative record.

Once the report is served, the parties have 20 days to file exceptions challenging portions of the judge’s findings, conclusions or recommendation.

Federal regulations then provide that no sooner than 25 days after the report is served, the administrative law judge will certify the full record to the DEA administrator. That record includes the hearing transcripts, exhibits, proposed findings from the parties, the judge’s report and any exceptions filed by the parties.

At that point, the decision moves to DEA Administrator Terrance Cole.

DEA explains that its administrative law judges issue recommended decisions, while the administrator issues final agency decisions.

The administrator could adopt the recommendation, reject it or reach a different conclusion based on the administrative record and applicable law.

Federal regulations again use the phrase “as soon as practicable” rather than establishing a firm deadline. Once a decision is reached, DEA must publish a final order in the Federal Register explaining the final rule and the findings of fact and conclusions of law supporting it.

Unless DEA determines that the public interest requires an earlier date, the final order would generally take effect at least 30 days after publication.

Yes, but it’s highly unlikely based on how the process has played out so far.

A proposed rule is not a final rule, and the administrative law judge’s eventual recommendation will not bind the DEA administrator. The agency must make its final decision based on the administrative record and the standards established by the Controlled Substances Act.

However, the government’s own position is now firmly in favor of Schedule III.

HHS recommended Schedule III after its scientific review. The Department of Justice proposed Schedule III in 2024. President Trump directed the attorney general to expeditiously complete the Schedule III rulemaking in 2025. The Justice Department partially implemented Schedule III for medical marijuana in April 2026. And federal attorneys spent the summer hearing defending the broader Schedule III proposal before asking Julius in their final brief to recommend it.

That does not predetermine the outcome, but it means a decision to maintain the remainder of marijuana in Schedule I would run contrary to the position the federal government itself presented during the proceeding.

One of the most consequential changes would involve Section 280E.

The tax provision specifically applies to businesses trafficking in substances listed in Schedule I or II. Marijuana placed in Schedule III falls outside the text of the statute.

A broad Schedule III rule could therefore eliminate the federal 280E tax restriction for marijuana activity covered by the new classification, allowing businesses to take ordinary deductions that have historically been unavailable to much of the industry.

Rescheduling would also formally recognize under federal controlled-substance law that marijuana has a currently accepted medical use.

Research could become easier in several respects because researchers studying a Schedule III substance are not subject to all of the controls associated with Schedule I research. The federal government has repeatedly identified research as one of the principal reasons for pursuing the change.

Schedule III would also alter certain federal rules and penalties that specifically distinguish between Schedule I or II substances and substances placed in lower schedules.

Exactly how the change interacts with state-licensed marijuana markets, federal registration requirements and other federal laws will depend in part on the language of the final order and subsequent agency implementation.

Even a final DEA order may not be the end of the process.

Federal law allows a person aggrieved by the attorney general’s final decision to petition for judicial review in the U.S. Court of Appeals for the District of Columbia Circuit or the federal appeals court covering the jurisdiction in which the person’s principal place of business is located.

Such a petition generally must be filed within 30 days after notice of the final decision.

Given the parties’ sharply conflicting positions during the hearing, litigation challenging a final broad rescheduling decision would not be surprising.

That would not necessarily stop a final rule from taking effect. A challenger would generally need to obtain a court order staying the rule if it wanted to prevent implementation while litigation proceeds.

The April partial rescheduling order is already facing separate litigation, demonstrating that the legal disputes surrounding federal marijuana classification are likely to continue even as the administrative process advances.

At this point, there is no official date.

The next formal milestone is Julius’ recommended decision, and DEA regulations give him no fixed deadline beyond requiring action “as soon as practicable.”

After that recommendation is issued, however, the process becomes somewhat easier to track because the parties receive a defined 20-day period for exceptions and the record cannot be certified to the administrator until at least 25 days after the recommendation is served.

The administrator then must issue the final order “as soon as practicable,” but again faces no specific number of days.

In practical terms, that means broad marijuana rescheduling could still be completed in 2026, but federal regulations do not guarantee that outcome.

For now, the most important development to watch is not another hearing or another round of testimony. It is Julius’ written recommendation.

Once that is released, the public will know for the first time how the judge who heard the full evidentiary record believes marijuana should be classified — and the federal process will enter its final administrative stages.

Until then, the unusual status quo remains in place: certain state-regulated medical marijuana and FDA-approved marijuana products are already in Schedule III, while the remainder of marijuana remains in Schedule I as DEA considers whether to make the Schedule III classification substantially broader.