Allegations of DEA cannabis bias heat up ahead of rescheduling hearings
Cannabis industry players are cranking up accusations that the Drug Enforcement Administration has engaged in improper behind-the-scenes communications and demonstrated deep-seated bias in its handling of marijuana rescheduling proceedings.
Village Farms International (NASDAQ: VFF) and advocacy group Hemp for Victory filed a motion Monday with the DEA’s administrative law court requesting the agency be disqualified from participating in upcoming administrative hearings on marijuana rescheduling. The motion cited “compelling evidence of DEA wrongdoing” to support the request.
The filing alleges the DEA has “thwarted legal process, violated basic rules of transparency, and cannot be entrusted to defend” the proposed rescheduling of marijuana from Schedule I to Schedule III under the Controlled Substances Act.
A December declaration from Heather Achbach, acting section chief of the DEA’s Diversion Control Division, revealed that the agency received 123 requests from 163 entities to participate in the hearings. However, only 25 participants were selected. Achbach, who is slated to testify in the proceedings, provided the numbers in opposition to a FOIA case.
“DEA’s biased opposition to placing marijuana in schedule III runs so deep that neither the scientific analysis and recommendation of HHS nor the binding legal conclusions of OLC, DOJ, and the Attorney General combined could sway it,” the latest motion stated.
Shane Pennington, a partner at Porter Wright Morris & Arthur LLP, which is representing Village Farms, said the new evidence “strongly suggests the DEA is using its authority in these proceedings to subvert the process and thwart the Schedule III proposal which it vehemently opposes.”
New evidence of bias
The motion details several examples of alleged preferential treatment, such s DEA Deputy Assistant Administrator Matthew Strait’s letter to the Tennessee Bureau of Investigation in September that offered guidance on their participation request – help that wasn’t extended to other potential participants like Colorado.
Colorado’s exclusion has drawn particular scrutiny. The state sought to provide context for its traffic death data cited in DEA’s proposed rescheduling rule, according to Pennington.
“The administrator barred Colorado from presenting that data. And now, secure in the knowledge that the administrator’s secret selection process has guaranteed that Colorado will not be able to respond or defend itself, DEA reveals its plan to smear the state’s successful regulatory program,” Pennington said.
The motion also revealed an undisclosed partnership between the DEA and the Community Anti-Drug Coalitions of America (CADCA), one of the selected hearing participants. CADCA announced in December it was working as DEA’s “partner” on fentanyl initiatives, a relationship neither organization disclosed to the administrative court.
On Jan. 2, the agency submitted a previously undisclosed analysis of marijuana, breaking with its longstanding practice of providing such reviews when rescheduling proceedings begin. The motion seeks to exclude this last-minute filing, arguing it bypasses proper review channels.
“The evidence of DEA bias against the ‘regulatory decisions’ of pro-rescheduling states is particularly alarming because it rests on a DEA view that the (Justice Department’s Office of Legal Counsel) considered and rejected,” the motion stated.
Foiled FOIA push
In a separate but related challenge, U.S. District Judge Christopher R. Cooper denied Texas attorney Matthew Zorn’s request to expedite the release of communications between DEA officials and anti-legalization groups, Law360 reported. Zorn filed the FOIA lawsuit after Smart Approaches to Marijuana’s CEO Kevin Sabet claimed to have “two confidential sources inside DEA” with insider knowledge of the agency’s opposition to rescheduling.
Cooper found Zorn’s request “overly burdensome,” noting that a search using his proposed keywords yielded more than 456,000 emails that would take an estimated 76 years to process at the agency’s current pace.
“Zorn claims he will be irreparably injured if the requested documents are not immediately disclosed,” Cooper wrote in his 11-page order. “The problem, however, is that Zorn offers no reason to think that any documents showing ex parte contacts would be uncovered by his FOIA request.”
The administrative hearings are scheduled to run from Jan. 21 through March 6. The agency previously rejected allegations of improper communications detailed in earlier motions.
Michael DeGiglio, CEO of Village Farms, called the proceedings “a sham orchestrated by the DEA to stonewall cannabis from being transferred to a Schedule III designation,” which would “continue to harm the health and safety of Americans and benefit Big Pharma and harmful addictive drugs like opioids.”
The motion once again asks for an immediate investigation into DEA’s communications and requests the Department of Justice take over the agency’s role in the proceedings.
2025.01.06-HFV-VFI-OCO-Mot-for-Reconsideration
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