Clearing the Haze? Federal Marijuana Rescheduling Heads to DEA Hearing as Legal Challenges Loom

On June 29, 2026, the Trump administration’s marijuana rescheduling effort enters a new phase as an administrative hearing, first announced on April 23, 2026, begins before a Drug Enforcement Administration (“DEA”) administrative law judge (“ALJ”). The hearing concerns the Department of Justice's (“DOJ”) proposed rule to transfer marijuana from schedule I to schedule III under the Controlled Substances Act (“CSA”). At the same time, the U.S. Court of Appeals for the D.C. Circuit is considering multiple legal challenges to a separate final order by DOJ released April 23, 2026 (the “April 2026 Final Order”) that immediately rescheduled from schedule I to schedule III (1) marijuana contained in FDA-approved drug products and (2) marijuana subject to a state medical marijuana license. The administration’s latest actions follow a December 2025 executive order in which President Trump directed the Attorney General to “take all necessary steps to complete the rulemaking process related to rescheduling marijuana to schedule III of the CSA in the most expeditious manner in accordance with Federal law,” as discussed in a prior Ropes & Gray Alert.

Despite the administration’s clear support of rescheduling efforts, these developments create uncertainty for manufacturers, researchers, and investors regarding whether and to what extent marijuana will be treated as a schedule III-controlled substance. This Alert summarizes the latest marijuana rescheduling efforts, reviews the pending D.C. Circuit challenges, and previews the DEA rescheduling hearing.

The April 2026 Final Order

On April 23, 2026, Acting Attorney General Todd Blanche issued a final order placing into schedule III (1) drug products containing marijuana that have been approved by FDA, and (2) marijuana that is subject to a state-issued license to manufacture, distribute, and/or dispense marijuana or products containing marijuana for medical purposes (a “state medical marijuana license”). The April 2026 Final Order did not reschedule all marijuana. Unlicensed bulk marijuana, marijuana extracts, other compounds derived from the marijuana plant (other than the mature stalks and seeds), and delta-9-tetrahydrocannabinol (“Δ9-THC”) material that has not been incorporated into an FDA-approved drug product—or that is not covered by a state medical marijuana license—remain in schedule I of the CSA. Synthetically derived THC also remains in schedule I.

The April 2026 Final Order was issued under Section 811(d)(1) of the CSA, which provides that where control of a substance is required by U.S. obligations under international treaties, conventions, or protocols in effect on October 27, 1970—including the Single Convention on Narcotic Drugs, 1961—the Attorney General “shall issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations, without regard to the findings required by [21 U.S.C. 811(a) or 812(b)] and without regard to the procedures prescribed by [21 U.S.C. 811(a) and (b)].” The administration relied on a 2024 Office of Legal Counsel (“OLC”) opinion concluding that, if marijuana is placed in schedule III, most of the Single Convention’s obligations will continue to be met by existing CSA statutory authorities and regulations. Because Section 811(d)(1) authorizes scheduling “by order” rather than “by rule,” the administration took the position that the Administrative Procedure Act’s (“APA”) notice-and-comment requirements do not apply. The order was accordingly issued without a preceding notice of proposed rulemaking or a formal hearing before an ALJ.

Ongoing Challenges to the April 2026 Final Order

Since the April 2026 Final Order, three separate petitions—now consolidated—challenging the order have been brought in the D.C. Circuit: one by Smart Approaches to Marijuana and the National Drug and Alcohol Screening Association;¹ one by the attorneys general of Indiana, Nebraska, and Louisiana (Louisiana has since withdrawn);² and a third by a coalition including a pharmaceutical company, an industry-victims advocacy group, an addiction recovery clinic, and two physicians.³

The petitioners ask the D.C. Circuit to vacate the April 2026 Final Order, collectively arguing, among other things:

• The April 2026 Final Order exceeds DOJ’s authority under Section 811(d)(1), citing a 1977 D.C. Circuit opinion in The National Organization for the Reform of Marijuana Laws (“NORML”) v. Drug Enforcement Administration that construed Section 811 as having a “limited purpose” that does not authorize marijuana’s placement below schedule II unless the Single Convention on Narcotic Drugs requires it.
• The April 2026 Final Order creates a “hybrid” schedule Congress never authorized, placing marijuana in schedule III while retaining schedule I- and II-style controls such as quotas, import-export permits, and enhanced registration.
• The April 2026 Final Order is procedurally deficient because it was issued without following the APA’s and CSA’s rulemaking requirements.
• The April 2026 Final Order does not fully satisfy U.S. treaty obligations, which DOJ’s OLC has also acknowledged.
• The April 2026 Final Order violates the major questions doctrine by deciding a matter of vast economic and political significance without clear congressional authorization, and it denies Fifth Amendment equal protection by treating chemically identical products differently based solely on state licensure or FDA approval.

Certain petitioners have asked the D.C. Circuit to stay the April 2026 Final Order on an interim basis pending the court’s review on the merits. Briefing on this motion is ongoing; DOJ’s response is due on July 2, 2026.

Ongoing DEA Hearing on Broader Rescheduling Effort

Separate from the April 2026 Final Order, DEA also published a new notice of hearing on the original proposed rulemaking to reschedule marijuana more broadly from schedule I to schedule III. The hearing effectively resets the prior administrative process: DEA withdrew an earlier notice of hearing from August 2024, cancelled the hearing that had been slated to begin in January 2025 but had stalled due to pre-hearing disputes, and terminated all related proceedings. The new hearing begins June 29, 2026 and is targeted to conclude no later than July 15, 2026. The purpose of the hearing is to receive factual evidence and expert opinion regarding whether marijuana should be transferred to schedule III of the list of controlled substances.

On June 18, 2026, DEA announced that it had selected seven participants for the hearing, all of whom appear to be opposed to rescheduling. According to publicly released DEA correspondence, at least some pro-rescheduling parties were rejected on the ground that they had not shown they were “adversely affected or aggrieved by any rule or proposed rule issuable” and therefore did not qualify as an “interested person” eligible to participate in the hearing under DEA regulations. On June 19, 2026, NORML—one such party whose request to participate in the hearing was rejected—sent a letter to the DEA Administrator seeking reconsideration or, alternatively, referral to the presiding officer and certification for interlocutory appeal. NORML argued that it qualifies as an “interested person” because it is in fact “adversely affected or aggrieved by” the proposed rescheduling: although NORML supports removing marijuana from schedule I, it contends that marijuana should be completely descheduled and regulated under a marijuana-specific federal framework. On June 24, 2026, the DEA administrative law judge presiding over the hearing announced that he would not entertain motions to “disturb” DEA’s participant selection choices for the hearing.

Conclusion

The pending legal challenges in the D.C. Circuit to the April 2026 Final Order and ongoing DEA hearing addressing broader rescheduling efforts leave significant uncertainty around the path forward for marijuana rescheduling, and Ropes & Gray will continue to closely monitor developments in this area. If you are interested in discussing marijuana rescheduling, please reach out to one of the authors or your usual Ropes & Gray advisor.