Day two of the federal marijuana rescheduling hearing delivered a pair of damaging moments for the government’s case — including a concession from the DEA’s own witness that marijuana would not have passed the rigorous medical-use standard the agency relied on for decades.
Under questioning from SAM and States counsel, the FDA official who oversaw the marijuana review acknowledged that the agency set aside its longstanding “five-part test” — the standard that closely mirrors the FDA’s own drug-approval process — in favor of a looser “two-part test” created in 2023. He confirmed the FDA had concluded as recently as 2015 that marijuana has a high potential for abuse, no accepted medical use, and cannot be used safely under medical supervision — and that nothing about the plant itself had changed since. What changed was the test.
Pressed on whether marijuana could have cleared the older, tougher bar, the witness ultimately conceded – over the government’s heated objections and a 15-minute back-and-forth between SAM’s counsel, the DEA, and the ALJ – that marijuana “would not have passed the five-part test,” explaining that the clinical studies were too small and the drug’s chemistry too inconsistent to qualify. He further acknowledged that the choice to use the easier two-part test was not the FDA’s decision at all — it came down from the Assistant Secretary for Health. McNichols also drew out that, since the FDA’s 2015 review, potency has risen and emergency-department visits and hospitalizations for cannabis use disorder have climbed. After these substantial concessions, the Government requested a break from the action (which was granted).
The government then called its second witness, Dr. Cory Burchman, a retired New Hampshire anesthesiologist, offered as an expert on treating pain with opioids and marijuana. Directly, he testified that he had transitioned chronic-pain patients off opioids and onto marijuana and had never seen a marijuana overdose death.
But cross-examination by NDASA’s counsel exposed real gaps. Burchman acknowledged he has not provided direct patient care since 2018 and now works in paid and advisory roles tied to the cannabis world, including advising a marijuana dispensary. He conceded that “medical” marijuana is nothing like a pharmacy prescription: physicians don’t prescribe it, don’t set the dose, and don’t choose the product or its THC concentration. Instead, patients “self-titrate” — deciding for themselves how much to take, or how much flower to smoke. He admitted that the dispensary “technicians” who guide patients are neither licensed nor state-trained, and that he had never actually examined the branded products his own dispensary sells. Evans noted those products — sold under names like “cherry pie” flower — can be used recreationally just as easily as “medically.”
Together, the day’s testimony reinforced the opponents’ central message: the government reached its conclusion only by lowering the bar, and the “medicine” at issue is sold without the dosing, oversight, or quality controls that define real medicine.
The hearing continues this week ahead of a July 3 recess, with SAM’s expert witnesses still to come.