A DEA administrative law judge stopped the marijuana rescheduling proceeding last week. He ordered supplemental briefing on a federal watchdog report. The GAO drug scheduling report describes a process with little written guidance. In short, it matches much of what opponents argued at the hearing.

What the GAO drug scheduling report found

GAO examined DEA and FDA scheduling from 2020 through 2025. It found both agencies operate with almost nothing written down.

“Aside from the MOU, DEA does not have any policies related to how its staff are to conduct evaluations or schedule substances,” the report states. DEA officials told investigators they have no other guidance. They rely on that memorandum and the statutes alone.

FDA is in a similar position. It has no policies for the eight-factor analysis that sets a drug’s schedule. Instead, GAO found, FDA’s Controlled Substance Staff “rely on person-to-person training.”

The sharpest admission concerns the statute’s central question. The Controlled Substances Act turns on a substance’s “potential for abuse.” However, it never defines the term. FDA officials said that gap “presented challenges for determining the relative abuse potential and appropriate schedule recommendation for some substances.” As a result, they “use their professional judgment” instead. They cited the same problem in assessing xylazine.

FDA pushed back on the finding. Officials said such policies were not necessary. Each analysis is individualized, they argued, and staff depth preserves continuity. The agency still concurred with GAO’s recommendation to write them.

A review that moved faster than the norm

GAO also timed the process. HHS evaluations requested by DEA between 2020 and 2025 took an average of a year and a half. In fact, 87 percent were finished within two years.

The marijuana review did not take that long. The President directed HHS to begin in October 2022. FDA’s recommendation is dated August 29, 2023, about eleven months later. DEA’s formal request would have followed that directive rather than preceded it. Therefore FDA’s actual evaluation window was shorter still. By the watchdog’s own benchmark, the marijuana review moved substantially faster than the norm.

Where it tracks the hearing record

Smart Approaches to Marijuana argued in its prehearing statement that HHS reached its 2023 recommendation through a fundamentally flawed analysis. Two specifics from the hearing now appear in the watchdog’s account.

The first is where the two-part test came from. Under questioning on day two, the FDA official who oversaw the marijuana review testified that the decision came “down from the Assistant Secretary for Health.” GAO documents the same origin. It cites a July 2023 memorandum from the Assistant Secretary for Health to the FDA Commissioner.

The second is what the test is worth. That witness conceded marijuana “would not have passed the five-part test.” That older standard required reproducible chemistry, adequate safety studies, and well-controlled efficacy studies. It also required acceptance by qualified experts and widely available evidence. Meanwhile, FDA officials told GAO the newer test “has not replaced other methods” and is “an additional framework.” They added that FDA approval “remains the most straightforward way” to establish medical use.

GAO also records a structural point the opponents have pressed. Under the Controlled Substances Act and a 2024 Office of Legal Counsel opinion, HHS’s scientific findings are binding on DEA until a proposed rule issues. After that, DEA must give them “significant deference.”

What the GAO drug scheduling report does not say

GAO did not evaluate whether marijuana belongs in Schedule III. It did not find that any scheduling decision was wrong. In fact, its finding on that question cuts the other way. DEA considered HHS evaluations in all 95 cases where the law required it. Its final decision matched the HHS recommendation in all 84 completed cases.

The report is about documentation. GAO’s concern is that undocumented process is fragile. The gaps, it warned, “may pose a risk to the consistency of DEA’s and FDA’s future operations in the event of staff turnover.”

The judge now has two weeks of briefing to decide what that means for marijuana. The agencies have already agreed the report is accurate.

• Marijuana Rescheduling Paused After FDA Tells Watchdog Its Own Test Was Never the Standard
• Day Two: DEA’s Own Witness Admits Marijuana Would Have Failed the Government’s Longtime Medical Test
• SAM Files Prehearing Statement, Subpoenas DEA’s Own Doctor