A DEA administrative law judge has paused the marijuana rescheduling proceeding for two weeks and ordered supplemental briefing. The order follows a federal watchdog report on how agencies decide which drugs belong in which schedule.
The Government Accountability Office published that report on September 23. Six days later, the proceeding stopped.
What the watchdog found
GAO examined how DEA and FDA scheduled substances from 2020 through 2025. It found both agencies work largely without written procedures.
“DEA does not have any policies or procedures regarding how its staff are to conduct evaluations or schedule substances,” the report states. FDA lacks policies specifying how its staff conduct evaluations or develop recommendations.
FDA officials also told auditors the agency has never defined “potential for abuse.” That phrase sits at the center of every scheduling decision in federal law. Officials said they fill the gap with “professional judgment.”
GAO warned the gaps “may pose a risk to the consistency of DEA’s and FDA’s future operations.” Every agency involved concurred with its recommendations.
Why it matters for marijuana rescheduling
The legal case for moving marijuana to Schedule III rests on one premise. HHS applied a two-part test and concluded marijuana has a currently accepted medical use, even though FDA has never approved it for any condition.
FDA officials described that test very differently to federal auditors. The two-part test “has not replaced other methods for determining currently accepted medical use,” they said. “Rather the two-part test is an additional framework.”
They went further. “FDA approval of a new drug application remains the most straightforward way to establish that a drug has a currently accepted medical use in treatment in the U.S.”
A standard the agencies set aside
Agencies created the two-part test in 2023. Before that, FDA applied a five-part standard that closely tracks its own drug-approval process.
Marijuana would not have passed it. Under questioning at the rescheduling hearing in June, the FDA official who oversaw the marijuana review acknowledged that the agency set the five-part test aside in favor of the looser one. Days later, a DEA pharmacologist testified that marijuana fails every scientific test the agency uses to establish medical use.
The report does not condemn the agencies across the board. GAO found DEA requested and considered HHS evaluations every time the law required it, for all 95 substances at issue. DEA’s final decision matched the HHS recommendation in all 84 cases where it had published a final rule.
The judge has given the parties two weeks to argue over what the report means for marijuana. The agencies have already agreed it is accurate.