Blowing Smoke? White House Orders Completion of Marijuana Rescheduling, but Significant Hurdles Remain

On December 18, 2025, President Donald Trump signed an executive order that may breathe new life into efforts to move marijuana to a less restrictive schedule under the Controlled Substances Act (“CSA”). Executive Order 14370, entitled “Increasing Medical Marijuana and Cannabidiol Research” (the “EO”), recognizes that marijuana’s historical position in schedule I—the most restrictive of the CSA’s schedules—has hampered research, and it urges the Attorney General to complete the ongoing rulemaking process to move marijuana to schedule III. The EO also directs further action by the administration to facilitate medical research and improve access to certain hemp products.

This EO represents the most significant action in the years-long journey toward rescheduling marijuana since the Department of Justice (“DOJ”) issued a notice of proposed rulemaking (the “NPRM”) on the topic in May 2024, as discussed in a prior Alert. While the EO signals that rescheduling cannabis is a priority for the Trump administration, achieving its aims requires clearing additional hurdles, including the Drug Enforcement Administration (“DEA”) administrative hearing process. This Alert summarizes the potential impact of the EO and the next steps that cannabis- and hemp-related businesses and researchers should monitor moving forward.

Recent History of the Marijuana Rescheduling Process

In the EO, President Trump directs 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, including 21 U.S.C. 811.” Marijuana—defined as all parts of the plant Cannabis sativa L., including seeds, compounds, derivatives, mixtures, and other preparations, but excluding select plant components and hemp products—has historically been regulated in schedule I of the CSA. This schedule contains other drugs with a high potential for abuse, no accepted medical use, and a lack of accepted safety for use even under medical supervision. Rescheduling actions under the CSA are subject to formal rulemaking procedures, which require that decisions be made both on the record and after the opportunity for an agency hearing before an administrative law judge (“ALJ”).

In May 2024, DOJ issued an NPRM that proposed to reclassify botanical cannabis (Cannabis sativa L.) containing more than 0.3% delta-9 tetrahydrocannabinol (“THC”) from schedule I to schedule III. In that proposal, DOJ aligned itself with the conclusion of a scientific and medical evaluation conducted by the Department of Health and Human Services (“HHS”) that marijuana now has a currently accepted medical use. Yet the NPRM noted that the DEA “has not yet made a determination as to its views on the appropriate schedule for marijuana,” and the document did not bear the signature of the DEA Administrator.

DOJ received more than 43,000 comments on the NPRM and numerous requests for a hearing. Despite conflicts about the selection of designated hearing participants, the ALJ held a scheduling hearing in early December 2024. The rescheduling process soon ground to a halt after several designated participants sought to disqualify DEA leadership from participating in the rulemaking, as discussed in greater detail in a prior Podcast. An appeal stayed administrative proceedings in January 2025 and remains pending with the current DEA Administrator. Moreover, the ALJ originally overseeing the hearing retired, leaving DEA, at least temporarily, without a single ALJ to take over the matter.¹

Impact of the Current EO

The EO may cause current DEA Administrator Terry Cole to restart the stalled administrative rescheduling process. However, whether DEA will ultimately move marijuana to schedule III is far from certain. The EO merely directs the Attorney General to complete the formal rulemaking process in accordance with the law – it is not self-executing and does not pre-determine any outcome from the required administrative hearing.

If the ongoing rescheduling process is ultimately successful, the reclassification of marijuana into schedule III would still not legalize it at the federal level or displace state law, and marijuana would remain subject to significant regulation by DEA and FDA. Rescheduling marijuana would reduce barriers to research that apply to schedule I controlled substances, although the Medical Marijuana and Cannabidiol Research Expansion Act from 2022 and the HALT Fentanyl Act enacted last year were intended to ease certain of those barriers for research with marijuana and schedule I controlled substances, respectively. However, FDA would still regulate most clinical research involving marijuana, and the substance would still be considered a new drug requiring FDA approval. Moving marijuana to schedule III also would not absolve parties from potential criminal liability under the CSA for failure to comply with the applicable schedule III requirements. Cannabis-related businesses would, however, no longer face restrictions on utilizing certain tax credits and deductions—such as deductions for ordinary and necessary business expenses—and would see expanded access to bankruptcy courts.

Impact on “Hemp” Product Standards

The EO also telegraphs President Trump’s support for revising the statutory hemp definition, a definition that was loosened in 2018 and then tightened in 2025. In the Agriculture Improvement Act of 2018, Congress defined marijuana as excluding hemp, which is itself defined as a product with less than 0.3% delta-9 THC, even if it contains other psychoactive compounds.² While hemp products remained subject to regulation by other agencies, such as FDA, they were no longer subject to DEA regulation as schedule I controlled substances. This statutory change led to the proliferation of hemp and CBD products in the marketplace.

The Fiscal Year 2026 Agriculture Appropriations Act—enacted in November 2025 as part of the package that ended the government shutdown—again amends the definition of hemp to bring certain products back under DEA control.³ Rather than defining hemp products as those with less than 0.3% delta-9 THC, under the new law, a hemp product must generally have a total THC concentration of less than 0.3%. The new law also excludes from the definition of hemp any hemp-derived cannabinoid products with more than 0.4 milligrams of THC per container. If the law goes into effect as scheduled in November 2026, it could render many existing hemp products unlawful under the CSA.

The EO directs members of the Trump administration, in partnership with Congress, to further revise the hemp definition to “allow Americans to benefit from access to appropriate full-spectrum CBD products while preserving Congress’s intent to restrict the sale of products that pose serious health risks.” It is unclear how these aims would be achieved or whether Congress—which just tightened the definition in November 2025—has any interest in revisiting it.

Impact on Marijuana Research

The EO recognizes that marijuana’s position in schedule I has limited the ability of researchers to study and develop cannabis and cannabis-derived products and to prepare submissions for FDA approval. It further acknowledges that this has left both patients and doctors without the guidance necessary to inform prescribing and utilization, despite its increasing use to treat pain and other conditions. The EO directs HHS and its various sub-agencies (FDA, the Centers for Medicare & Medicaid Services (“CMS”), and the National Institutes of Health (“NIH”)) to “develop research methods and models utilizing real-world evidence to improve access to hemp-derived cannabinoid products.” These efforts may provide clarity regarding research avenues for those interested in developing and commercializing new hemp-derived products.

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Ropes & Gray will continue to monitor developments in this area. If you are interested in discussing the proposed marijuana rescheduling or hemp research or regulation, please reach out to one of the authors or your usual Ropes & Gray advisor.