DEA's Marijuana Rescheduling Defense Under Fire: The Fallout From GAO's Procedural Findings

Duane Boise CEO of MMJ International Holdings: "The government restricted its own witness's testimony, then argued the other side already had its chance while a Federal watchdog findings expose serious weaknesses in DEA and FDA decision making as the government fights to prevent further scrutiny of marijuana rescheduling".

WASHINGTON, D.C. / October 22, 2026 / MMJ International Holdings, Inc. (MMJIH) today called attention to a growing contradiction in the federal government's defense of marijuana rescheduling.

On September 23, 2026, the Government Accountability Office released Drug Scheduling: While DEA Decisions Have Aligned with Recent HHS Recommendations, Both Need Comprehensive Policies (GAO-26-108623). GAO found that the Drug Enforcement Administration has no policies identifying roles, responsibilities, and procedures for scheduling. It also found that the Food and Drug Administration has no policies or procedures specifying how its staff conduct scheduling evaluations or develop recommendations.

GAO directed FDA to develop the criteria and process for determining a substance's "potential for abuse," including abuse potential relative to other substances. That is the central statutory question in any scheduling decision. DEA, FDA, and NIH concurred with all three of GAO's recommendations.

The government's response

On October 20, DEA opposed a motion asking Chief Administrative Law Judge Derek C. Julius to reopen the marijuana rescheduling hearing (DEA Docket No. 1362, Hearing Docket No. 26-96) for limited discovery and testimony in light of the GAO findings. DEA called the request "an obvious fishing expedition."

DEA's central argument is that the GAO report shows the absence of written procedures, so there are no records to add. That argument proves the opponents' point. If no written standard governed how FDA assessed abuse potential or applied its new two-part test for "currently accepted medical use," the only way to learn what standard was used is to ask the people who applied it.

The Touhy contradiction

The government's own filing reveals a second problem. Before the hearing, the government issued a Touhy letter limiting FDA's Dr. Dominic Chiapperino to three topics beyond the HHS report. In the same filing opposing discovery, DEA argues that opponents "had full opportunity" to cross-examine him and are seeking a "second bite at the apple."

A party cannot restrict what its witness may say and then fault the other side for not getting answers outside those limits.