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There were massive cheers in the marijuana industry when Acting Attorney General Todd Blanche issued a final order last week that rescheduled FDA-approved marijuana medications and state-licensed medical marijuana. And for those two categories, there were great reasons to rejoice.
But what about adult-use/recreational cannabis operators, operators who hold both medical and adult-use marijuana licenses, or operators who have a single license authorizing medical and adult-use operations? That debate will formally begin during an administrative hearing on June 29 and is to conclude no later than July 15.
There are two obvious tensions between rescheduling marijuana for medical purposes and for recreational purposes. The first, and one that is largely outside the scope of this post because it is a policy decision that will be very difficult to predict, is whether the DOJ has the political will to treat medical and recreational marijuana the same way. After all, just over half of the states that have a medical program also have a recreational program, perhaps suggesting that there is a delta in popular support between the two. And, after all, we are talking about the exact same products.For example, a person over the age of 21 can purchase a bag of marijuana gummies in Colorado that is, for all intents and purposes, exactly the same as the bag of gummies a medical marijuana patient can purchase in Colorado.
The second, which is obvious only to those who have read the final rule rescheduling medical marijuana, is that the decision was based in large part on the belief that medical marijuana could lawfully be rescheduled consistent with the United States’ obligations under the Single Convention Treaty and Convention on Psychotropic Substances because those authorities permit the scheduling and rescheduling of substances used for medical and scientific purposes. Is that the case with adult-use/recreational marijuana? Or did the final rule use these convention authorities to reschedule medical marijuana quickly while reserving the right to reschedule non-medical marijuana in ways either consistent with (or perhaps not consistent with) the way DOJ rescheduled marijuana (e.g., pursuant to the Administrative Procedures Act)?
Without taking either side, let’s dig in.
This is a potentially threshold question for predicting whether adult-use marijuana will be rescheduled, because the path is easier if the Single Convention is not an impediment.
As an aside, has anyone ever heard so much about the Single Convention than we have in the past few weeks? Sure, industry insiders and lawyers understood that the Single Convention was something to be dealt with, but the acting AG’s invocation and prominent placement of it in the final rule really brought the treaty to the forefront.
It is apparent that DOJ acted under 21 U.S.C. § 811(d)(1) — which authorizes the attorney general to control a substance under the schedule deemed most appropriate to satisfy U.S. obligations under international treaties in effect on October 27, 1970, including the Single Convention on Narcotic Drugs – to satisfy the president’s increasingly urgent demands for quick rescheduling.
This provision permits the attorney general to issue a scheduling order “without regard to” the findings and notice-and-comment rulemaking procedures that ordinarily apply under the CSA, per 21 U.S.C. 811 (a) or (b). By invoking treaty authority, Blanche bypassed the Administrative Procedure Act’s notice-and-comment requirements and the Controlled Substances Act’s ordinary scientific-findings prerequisites. That’s why the order could take effect immediately. But the same treaty framework that enabled the speed also threatens to constrain the destination.
The Single Convention obligates its parties to impose certain control measures over drugs listed in its Schedule I, including that allowable substances be limited to those that are produced, distributed, and used for medical and scientific purposes.
Blanche’s order, while noting he can bypass the CSA’s Section 811 (a) and (b) findings, appears to lean into this directly. Blanche points specifically to HHS’s 2023 scientific and medical findings, arguing that limiting the reclassification to medical marijuana will help meet U.S. obligations under the Single Convention. That treaty, he notes, exempts “medicinal cannabis” from a general requirement that signatory governments control the wholesale supply of marijuana.
Here is where the logical tension becomes acute: By anchoring the justification for rescheduling in the Single Convention’s “medical purposes” and “medical and scientific purposes” language, the order arguably ratifies the treaty framework as the governing constraint. If medical use is what justifies Schedule III placement under the treaty, one could argue that adult use — which is definitionally not medical or scientific — cannot be justified under the same treaty authority.
On the other hand, valid arguments exist that non-medical, non-scientific activities are not prohibited but are simply less regulated by the convention. Article 2 of the Single Convention says that “drugs which are commonly used in the industry for other than medical and scientific purposes” are exempt from control, provided that two requirements are met — implementing effective measures to avoid harms and providing reasonable statistical reporting. Because recreational marijuana consumption is an “other than medical or scientific” use that has become common in the industry (the legal cannabis industry itself), a state that implements harm-reduction measures and reports quantities to the International Narcotics Control Board (INCB) can lawfully claim the exemption.
Beyond these arguments based on the text of the convention, arguments that moving marijuana to Schedule III does not violate international treaties could include:
Summed up, the potential obstacle provided by the Single Convention is that Blanche’s decision to follow the treaty pathway and framing the entire justification around the Single Convention’s medical exemption may constrain future efforts to drop adult-use marijuana to Schedule III. Blanche or future attorneys general who want to move adult-use marijuana to Schedule III (or deschedule it entirely) will have to either (1) argue that the Single Convention permits adult-use legalization — a position that is textually difficult and internationally contested — or (2) argue that the U.S. should withdraw from or renegotiate its treaty obligations — a far more politically fraught path.
As for the substantive arguments in favor of extending Schedule III to adult-use marijuana, they’re largely the same arguments that got medical marijuana there — but with some additional complications. Here’s how they’ll likely be framed at the hearing:
The Single Convention framing in the final order does make adult-use federal rescheduling harder than it needed to be, but arguments exist to support that move. Rest assured, fireworks are expected between now and the scheduled June 29 hearing.
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Find Your Next Job !
There were massive cheers in the marijuana industry when Acting Attorney General Todd Blanche issued a final order last week that rescheduled FDA-approved marijuana medications and state-licensed medical marijuana. And for those two categories, there were great reasons to rejoice.
But what about adult-use/recreational cannabis operators, operators who hold both medical and adult-use marijuana licenses, or operators who have a single license authorizing medical and adult-use operations? That debate will formally begin during an administrative hearing on June 29 and is to conclude no later than July 15.
There are two obvious tensions between rescheduling marijuana for medical purposes and for recreational purposes. The first, and one that is largely outside the scope of this post because it is a policy decision that will be very difficult to predict, is whether the DOJ has the political will to treat medical and recreational marijuana the same way. After all, just over half of the states that have a medical program also have a recreational program, perhaps suggesting that there is a delta in popular support between the two. And, after all, we are talking about the exact same products.For example, a person over the age of 21 can purchase a bag of marijuana gummies in Colorado that is, for all intents and purposes, exactly the same as the bag of gummies a medical marijuana patient can purchase in Colorado.
The second, which is obvious only to those who have read the final rule rescheduling medical marijuana, is that the decision was based in large part on the belief that medical marijuana could lawfully be rescheduled consistent with the United States’ obligations under the Single Convention Treaty and Convention on Psychotropic Substances because those authorities permit the scheduling and rescheduling of substances used for medical and scientific purposes. Is that the case with adult-use/recreational marijuana? Or did the final rule use these convention authorities to reschedule medical marijuana quickly while reserving the right to reschedule non-medical marijuana in ways either consistent with (or perhaps not consistent with) the way DOJ rescheduled marijuana (e.g., pursuant to the Administrative Procedures Act)?
Without taking either side, let’s dig in.
This is a potentially threshold question for predicting whether adult-use marijuana will be rescheduled, because the path is easier if the Single Convention is not an impediment.
As an aside, has anyone ever heard so much about the Single Convention than we have in the past few weeks? Sure, industry insiders and lawyers understood that the Single Convention was something to be dealt with, but the acting AG’s invocation and prominent placement of it in the final rule really brought the treaty to the forefront.
It is apparent that DOJ acted under 21 U.S.C. § 811(d)(1) — which authorizes the attorney general to control a substance under the schedule deemed most appropriate to satisfy U.S. obligations under international treaties in effect on October 27, 1970, including the Single Convention on Narcotic Drugs – to satisfy the president’s increasingly urgent demands for quick rescheduling.
This provision permits the attorney general to issue a scheduling order “without regard to” the findings and notice-and-comment rulemaking procedures that ordinarily apply under the CSA, per 21 U.S.C. 811 (a) or (b). By invoking treaty authority, Blanche bypassed the Administrative Procedure Act’s notice-and-comment requirements and the Controlled Substances Act’s ordinary scientific-findings prerequisites. That’s why the order could take effect immediately. But the same treaty framework that enabled the speed also threatens to constrain the destination.
The Single Convention obligates its parties to impose certain control measures over drugs listed in its Schedule I, including that allowable substances be limited to those that are produced, distributed, and used for medical and scientific purposes.
Blanche’s order, while noting he can bypass the CSA’s Section 811 (a) and (b) findings, appears to lean into this directly. Blanche points specifically to HHS’s 2023 scientific and medical findings, arguing that limiting the reclassification to medical marijuana will help meet U.S. obligations under the Single Convention. That treaty, he notes, exempts “medicinal cannabis” from a general requirement that signatory governments control the wholesale supply of marijuana.
Here is where the logical tension becomes acute: By anchoring the justification for rescheduling in the Single Convention’s “medical purposes” and “medical and scientific purposes” language, the order arguably ratifies the treaty framework as the governing constraint. If medical use is what justifies Schedule III placement under the treaty, one could argue that adult use — which is definitionally not medical or scientific — cannot be justified under the same treaty authority.
On the other hand, valid arguments exist that non-medical, non-scientific activities are not prohibited but are simply less regulated by the convention. Article 2 of the Single Convention says that “drugs which are commonly used in the industry for other than medical and scientific purposes” are exempt from control, provided that two requirements are met — implementing effective measures to avoid harms and providing reasonable statistical reporting. Because recreational marijuana consumption is an “other than medical or scientific” use that has become common in the industry (the legal cannabis industry itself), a state that implements harm-reduction measures and reports quantities to the International Narcotics Control Board (INCB) can lawfully claim the exemption.
Beyond these arguments based on the text of the convention, arguments that moving marijuana to Schedule III does not violate international treaties could include:
Summed up, the potential obstacle provided by the Single Convention is that Blanche’s decision to follow the treaty pathway and framing the entire justification around the Single Convention’s medical exemption may constrain future efforts to drop adult-use marijuana to Schedule III. Blanche or future attorneys general who want to move adult-use marijuana to Schedule III (or deschedule it entirely) will have to either (1) argue that the Single Convention permits adult-use legalization — a position that is textually difficult and internationally contested — or (2) argue that the U.S. should withdraw from or renegotiate its treaty obligations — a far more politically fraught path.
As for the substantive arguments in favor of extending Schedule III to adult-use marijuana, they’re largely the same arguments that got medical marijuana there — but with some additional complications. Here’s how they’ll likely be framed at the hearing:
The Single Convention framing in the final order does make adult-use federal rescheduling harder than it needed to be, but arguments exist to support that move. Rest assured, fireworks are expected between now and the scheduled June 29 hearing.
More Upcoming Events
Sign Up for any (or all) of our 25+ Newsletters
You are responsible for reading, understanding, and agreeing to the National Law Review’s (NLR’s) and the National Law Forum LLC’s Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free-to-use, no-log-in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Any legal analysis, legislative updates, or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys, or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.
Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com intended to be a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional. NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us.
Under certain state laws, the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.
The National Law Review – National Law Forum LLC 2070 Green Bay Rd., Suite 178, Highland Park, IL 60035 Telephone (708) 357-3317 or toll-free (877) 357-3317. If you would like to contact us via email please click here.
Copyright ©2026 National Law Forum, LLC