Every nongovernment participant selected for the DEA’s rescheduling hearing opposed reform. By the time the record closed, one marquee witness had undercut a central part of his side’s case, another had reportedly acknowledged that cannabis meets the Schedule III criteria, and the opposition’s strongest agency scientist had exposed the legal question likely to shape what comes next. Briefs and transcript corrections are due August 17, while a parallel court fight is already underway.
This is the third installment in High Times’ coverage of the DEA’s rescheduling hearing. Read Part I, “The DEA Blocked the Cameras at This Cannabis Hearing. Here’s What They Didn’t Want You to See,” and Part II, “Prohibitionists Just Argued Themselves Into a Corner: To Stop Weed Reform, They Told a Court How Much Money They’d Lose”
The states of Nebraska, Idaho and Indiana called Humboldt County Sheriff William Honsal to make a straightforward argument: that legal cannabis fuels crime, and that federal rescheduling would make it worse. Honsal runs law enforcement in the heart of California’s Emerald Triangle, the most storied weed-growing region in the country. If anyone could tell a federal tribunal that legalization bred lawlessness, it was supposed to be him.
Then the Justice Department got him on cross-examination, and he complicated his own side’s theory. Regulated cannabis can help law enforcement, Honsal told the tribunal, and most of the California product diverted to other states comes from unlicensed operators, not the legal market. That is according to attorneys from Vicente LLP who were in the room. It did not erase every concern in the states’ filing. But it undercut a central implication of their crime argument, that the regulated market itself was the engine of the crime they described.
The states’ own pre-hearing statement had blamed the growth of the illicit market directly on changes in cannabis law, complete with a warning about organized criminal groups buying up California property to mass-produce weed for interstate sale. Under oath, their witness complicated that account. And it wasn’t a slip. Honsal has said versions of this for years. Back in 2019, he told the Humboldt County Board of Supervisors that the number of illegal grows in the county was falling, “and that is what we call a win,” and that large-scale trafficking operations were on the wane. His point then, as on the stand, was not that legalization had erased every harm. It was that the illicit market had shrunk after legalization, even as the operators who remained outside the law changed tactics.
The Problem the Opposition Carried Through the Hearing
Honsal was the clearest example of a problem that ran through the whole proceeding. When the opposition’s witnesses engaged the government’s actual legal criteria, some handed the government useful admissions. And when its strongest scientist went after the rule, she made the fight about which legal standard applies.
The most consequential reported admission came from Smart Approaches to Marijuana’s marquee expert, Harvard’s Dr. Bertha Madras, among the most credentialed cannabis skeptics in the country. The Marijuana Herald reported, citing a source familiar with the exchange, that Madras answered “yes” when asked under cross-examination whether cannabis meets Schedule III’s statutory criteria. The account was corroborated by The Dales Report’s correspondent inside the hearing. Until that transcript is public, the precise scope of the admission remains uncertain.
The Opposition’s Strongest Witness Made the Fight About the Test
Not every opposition witness helped the government. The opposition’s strongest moment came from a witness who works for the agency defending the rule.
SAM subpoenaed Dr. Luli Akinfiresoye, a pharmacologist in the DEA’s own Drug and Chemical Evaluation Section and an author of the agency’s 2024 scientific review. She testified that under the DEA’s traditional five-part test, cannabis lacks a currently accepted medical use, is not consistently reproducible, and is diverted through state medical systems. The government declined to cross-examine her, leaving that testimony untested on cross even as its own affirmative case rested on a different medical-use framework.
That silence has been read as confidence. Business of Cannabis interpreted it as the government signaling that Akinfiresoye’s five-part standard had been superseded and that her testimony was aimed at the court record rather than at this judge. That is a plausible reading, but it is an interpretation, not something the government proved by declining to ask her a question. Her testimony gave SAM the factual foundation for its strongest legal argument: not merely that cannabis fails the DEA’s traditional five-part test, but that the government could not replace that framework with the two-part inquiry it used to reach its conclusion. That is the same dispute the Justice Department’s Office of Legal Counsel addressed in 2024, when it found exclusive reliance on the five-part test impermissibly narrow and concluded that HHS’s two-part inquiry was sufficient to establish a currently accepted medical use.
That is the real shape of what the opposition built. Its most effective play was not to prove that cannabis fails the standard the government applied. It was to contest which standard governs in the first place.
One Hearing, Two Audiences
That helps explain the rest of the opposition’s case. Chief Administrative Law Judge Derek Julius set the scope narrowly on day one: whether cannabis beyond FDA-approved products and state-licensed medical cannabis, both moved to Schedule III in April, meets the criteria for accepted medical use, comparative abuse potential and dependence. Much of the opposition’s testimony concentrated elsewhere, on youth exposure, potency, mental-health risk and diversion. Those issues can bear on abuse potential and on the controls placed around cannabis. They did less to rebut the government’s threshold claim that cannabis has at least one currently accepted medical use and a risk profile consistent with Schedule III.
The gap between that testimony and the question in front of Julius suggests that the judge was only one audience. The other was the U.S. Court of Appeals for the D.C. Circuit, where three challenges to the April rescheduling order have already been consolidated and a motion to stay the order is pending. This does not prove the opposition expected to lose before Julius; parties preserve issues for judicial review regardless of how confident they are. But it fits what observers in the room described. MJBizDaily reported that much of the opposition testimony appeared aimed at building a record for later litigation, and quoted NORML’s Paul Armentano saying opponents were likely establishing a record for appeal rather than primarily trying to influence the ALJ.
The government, for its part, chose not to fight every point. As journalist Natalie Fertig reported from inside the hearing for Cultivated News, the DEA cross-examined sparingly, sometimes only a handful of questions. Its theory was comparatively narrow: establish at least one accepted medical use, a lower abuse potential than Schedule I and II substances, and a dependence profile consistent with Schedule III. On safety, the government’s point was specific: that cannabis does not produce the fatal respiratory-depression pattern associated with opioids. That strategy makes sense if the government believed the governing framework had already done most of the work. But it also left Akinfiresoye’s contrary testimony largely untested on cross.
What Happens Next, and When
The day after the record closed, Julius issued an order for transcript corrections and post-hearing briefs that set the next real marker. Designated parties have until August 17 to file optional post-hearing briefs, up to 50 pages, one per party, with no adverse inference for declining to file. The same date is the deadline to propose corrections to the hearing transcript, and those corrections are limited to genuine transcription errors, misspellings and misattributed lines. They cannot be used to revise testimony or to walk back something a witness said. Whatever the witnesses said on the stand is locked in. Only transcription errors get fixed.
After the briefs, Julius drafts a recommended decision, which is not binding. Once it lands, parties get 20 days to file exceptions, and then the full record is certified to DEA Administrator Terrance C. “Terry” Cole, who makes the agency’s final determination. No timetable has been set for either Julius’s recommendation or Cole’s final call. Meanwhile, the parallel D.C. Circuit litigation continues.
The record in front of Julius is less favorable to the opposition than its hold on every nongovernment participant slot might suggest. Honsal undercut a central implication of the states’ crime argument. Madras reportedly acknowledged that cannabis satisfies the Schedule III criteria, though the transcript will determine the scope of that admission. Akinfiresoye gave the opposition its strongest answer, and in doing so clarified the decisive fork in the case: if Julius accepts the government’s two-part framework for currently accepted medical use, the path to Schedule III is relatively straightforward. If he concludes that the DEA’s traditional five-part test still governs, it is not.
That leaves the opposition’s strongest argument in this hearing resting on a legal claim: that the government used the wrong test for accepted medical use. The D.C. Circuit is already considering a separate challenge to April’s partial rescheduling order, and any final rule extending Schedule III to cannabis more broadly would likely trigger another round of judicial review, potentially before the same court.
