Musings from the DEA Schedule III hearing [GUEST POST]

Editor’s note: This article was written by my friend and colleague, Gary Kaminsky. Gary is representing Corey A. Burchman, MD, in the DEA hearing on the notice of proposed rulemaking to transfer marijuana from schedule I to schedule III of the Controlled Substances Act. Dr. Burchman is a longtime respected cannabis advocate. In this article, Gary provides an informative and entertaining account of the hearings and Dr. Burchman’s testimony. – Rod Kight

MUSINGS FROM THE DEA SCHEDULE III HEARING

I had the unique opportunity to participate in this week’s hearing in Arlington to determine whether marihuana has a Common Accepted Medical Use (“CAMU”) mandating its removal from Schedule I of the Controlled Substance Act of 1970 (“CSA”).   From a professional standpoint, I was honored to be able to help prepare my client, Dr. Corey A Burchman to testify in support.  On a personal level, I felt like I was at the World Cup finals watching my friend “Leo Messi” score a hat trick.

It was an invigorating experience witnessing the DEA aggressively argue in favor of the CAMUs that our beloved plant has and effectively crush the “refer madness” opposition to marihuana’s many efficacious therapeutic benefits.  The gravitas of this hearing may still to be determined but the fact that the DOJ is advocating to facilitate the broader use of marihuana in the US is, in itself, groundbreaking. 

The other remarkable observation I had was that we were witnessing two sides arguing different cases. 

The DEA’s argument was simple – marihuana has at least one CAMU.  As James J. Schwartz, the DEA’s senior attorney clearly stated in his opening statement, this matter is about whether marihuana has one CAMU, not about legalization.   The opposition on the other hand seemed to want to discount the known and proven science and focus on the FDA/DEA/HHS process and the state system for dispensation.  I liken it to two ships passing in the night.

One would think proving one CAMU would be an easy task, since this plant has been used for thousands of years, mostly for therapeutic reasons and 40 states have approved its use medically.  Nonetheless, marihuana has been the victim of politicized legislation for the past century, most pointedly Nixon’s hate of the hippies leading to the enactment of the CSA placing marihuana on the same schedule as heroin, LSD and MNDA.

The ensuing 50 plus years have seen marihuana regulation evolve on this very fragile base into a confused and inconsistent series of legislative and regulatory dictates coupled with a promulgation of state-by-state acceptance and the accompanying disparate regulatory schemes.

It is clear for the April DOJ Executive Order that this hearing was about the CAMU of “marihuana.”  Not about “medical marihuana” not about “recreational marihuana” but about whether this amazing plant has at least one medical use.  For those of us who have devoted our blood sweat and tears to this industry, this may not be revelatory.  There is only one plant Cannabis Sativa L that is filled with over 150 known cannabinoids, a number for which there is definitive scientific evidence of medical efficacy.  For the Attorney General to mandate an “expeditious” process to show this and for the DEA to, as aggressively as it has opposed this, advocate for it, is nothing short of historic. 

I can attest that the DEA is taking this very seriously and putting forth its best effort to carry it burden of proof.  Dr. Chiapperino, the Director of the FDA Controlled Substance Section and the DEA’s first witness, effectively explained the HHS process, the analysis and its conclusion that marihuana had at least three CAMUs for (1) anorexia, (2) nausea and (3) pain management.  He did this despite vociferous cross from counsel for the reefer madness opposition who seemed more intent on trying to make a record for their pending federal court appeals than actually litigate this administrative hearing.  We heard hours of relentless arguments framed as questions from opposing counsel seemingly designed solely to allow counsel to get certain of their views on the record for future use.  Unfortunately, for them, most, if not all points they may have made were wholly irrelevant to the gravamen of the hearing.  All drugs carry risks and require care and knowledge in use. 

The attack on the HHS process, while providing great opportunity for them to espouse conspiracy theories of government misfeasance and grandstand for their marihuana hating clients, really has little to do with this hearing. This is about CAMU and whether the DEA can prove there is at least one medical use for marihuana.  SAM, one of the most vocal opposition parties, trumpeted its lawyer’s ability to get the good Doctor to testify that HHS used a different test to approve medical marihuana than it had used previously implying that the government skewed its comprehensive ten month long deliberative process involving thousands of man hours from professionals in three agencies to get some desired result. 

It’s clear that the reason the two-factor test was ultimately used was marihuana is a unique substance and does not fit into the agencies’ previous drug analyses.  For one it is a plant containing numerous molecules with substantial potential CAMU and unlike other drugs, it’s already prevalently being dispensed and used across the country.  A round peg in a square hole as we say requiring a different test to determine the efficacy and accordingly, appropriate schedule.  More notably, the DOJ Office of Legal Counsel’s (OLC) 2024 opinion found that the HHS’s two-part test was sufficient and in fact mandated it be used.

Dr. Burchman took the stand on the afternoon of day two testifying in clear and articulate terms the substantial medical value of marihuana to his pain management practice at the Dartmouth Geisel School of Medicine.  Dr. Burchman highlighted the substantial efficacy marihuana showed in transitioning patients off very harmful and addictive opioids previously the primary drug used for chronic pain management.  He cited numerous scientific studies supporting this as well as real life examples of his experience with his hundreds of patients.  Dr. Burchman provided the court with a flowery analogy stating that “withdrawal from opioids is like a dumpster fire,” while withdrawal from marihuana is “more like a dying glowing ember of a campfire.”

Maybe the highlight of Dr. Burchman’s testimony and the first couple days of the hearing came when he explained to the court the human body’s organic endocannabinoid system with its CB receptors and how the key cannabinoids of THC and CBD attach thereto to provide pain management therapeutic efficacy.  At one point, Dr. Burchman stated that the human body is filled with billions of these receptors which in essence means the human body has marihuana running it through it naturally.  He also provided the much needed explanation of the term “full spectrum” and the importance of its use in treating patients.  Hearing these explained in federal court for maybe the first time was nothing short of remarkable and clearly made the case for CAMU.

Incredibly, opposition counsel appeared completely surprised by Dr. Burchman’s testimony resorting to ridiculous and desperate objections to him as a witness on due process grounds claiming they were unaware he would testify about individual patient experiences.  These objections were overruled by the ALJ and led to him reading into the record the DEA’s statement of case which specifically stated that Dr. Burchman would be testifying about exactly this topic. 

After that, counsel realizing they could not discount his direct experience treating patients and his expertise in pain management, resorted to trying to discredit Dr. Burchman comically asking him if he was high at the hearing and when was the last time he got high.  Not surprisingly, when his testimony resumed on day three, counsel, as I had predicted, did not even take its full allocation of cross examination time, waiving it in fear of eliciting further support for the DEA’s case.

We did get one entertaining moment though when counsel for SAM violated the cardinal rule of litigation and asked Dr. Burchman a question for which counsel clearly did not know the answer.  When asked whether there had ever been an FDA approved botanical plant drug, Dr. Burchman, with a smile, replied, “I am glad you asked that,” and preceded to testify about the recent FDA breakthrough therapy designation it granted to VER-01, a First-in-Class Non-Opioid, Cannabis-Based Investigational Treatment for Chronic Low Back Pain. VER-01 by the way, is a full spectrum drug containing 2.5 mg of THC and CBD and CBG.

The DEA’s redirect elicited a material point from Dr. Burchman where he explained the difference between “cause” and “correlation.” Dr. Burchman explained that the studies that the opposition were espousing were simply examples of non-causal correlations which do not definitely show any connection between marihuana and the harms they claim are attached to use. In fact. Dr. Burchman was relatively familiar with almost every study they presented and was able to discount them all.

Dr. Burchman’s testimony ended with the ALJ requesting the opportunity to ask a question which provided a final mike drop to the DEA’s case.  He asked what definition of “medical marijuana” Dr. Burchman was using in his testimony.  Much to the delight of the industry, Dr. Burchman testified that there is no medical or recreational marihuana, there is only marihuana which is Cannabis Sativa L.

With one week in the books, we can only wait for the next.  I am confident the DEA carried its burden and do not see how the opposition will be able to refute the clear unequivocal showing of CAMU.  That being said, we are in for a fight as the opposition intends to appeal any decision and continue to perpetuate its reefer madness dogma.  As we all enjoy our country’s 250^th anniversary, we can rest easy that marihuana is finally positioned to potentially take the next step.  Remember it was marihuana that financed the revolution as the primary cash crop of our founders.

July 3, 2026

Gary Kaminsky has over 39 years of experience as a regulatory compliance attorney, the past decade in the Cannabis (Hemp and Marihuana) industry. Gary’s expertise is in advising, developing and implementing regulatory enterprise risk management infrastructure designed to mitigate lapses that can cause disruption to businesses.

Gary has worked at and advised a number of US multi-state operators and other companies across the supply chain in the Cannabis industry. Since the passage of the 2018 Farm Bill, Gary has been actively involved in the development of “best practices” for companies operating in the emerging hemp-derived infused beverage industry, advising supply chain participants on regulatory issues related to, among other matters, labelling, distribution and marketing of products.

Gary is frequently turned to as an informational resource by state and federal regulators and law enforcement as well as an author and panelist on Cannabis industry issues.

Gary’s distinguished career began as a senior attorney with the Enforcement Division of the U.S. SEC in Washington in 1986. He is a co-founder, COO, CCO and General Counsel for two alternative investment fund companies and CCO and Counsel for Susquehanna Investment Group, a leading proprietary trading firm, preceded by a position as a securities and regulatory attorney with Dechert, LLP.

He received a BA from the University of North Carolina at Chapel Hill, and his Juris Doctor from the State University of New York at Buffalo.