DEA's Own Expert: Marijuana Fails 3 of 5 Medical Use Factors—Order at Risk

For regulatory attorneys and administrative law practitioners, the DEA's marijuana rescheduling proceeding is now a case study in agency self-contradiction. When a government's own scientific witness undercuts the factual predicate for a proposed rule, the administrative record becomes fertile ground for litigation under the APA. Every step of the final order—if it proceeds—must now account for sworn testimony that the drug failed the DEA's own medical use criteria, setting up a classic duel between agency science and political directive.

The Drug Enforcement Administration's (DEA) own pharmacologist, Dr. Luli Akinfiresoye, delivered sworn testimony on July 8, 2026, that directly contradicts the scientific foundation of the Department of Health and Human Services' (HHS) recommendation to reschedule marijuana to Schedule III—a move that would significantly ease federal restrictions. Dr. Akinfiresoye, who authored the DEA's 2024 Scientific Data Review on marijuana, testified under subpoena that the substance fails the first three elements of the agency's long-standing five-factor test for determining 'currently accepted medical use.' Her conclusions expose a profound scientific rift within the federal government and raise the central legal question: Can the DEA Administrator lawfully issue a rescheduling order based on findings that the agency's own expert rejected?

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According to Duane Boise, CEO of MMJ International Holdings and a participant in the hearing, Dr.

The five-factor test, developed over decades of DEA practice, requires a drug to satisfy five cumulative criteria: (1) its chemistry is known and reproducible; (2) there are adequate safety studies; (3) there are adequate and well-controlled studies proving efficacy; (4) the drug is accepted by qualified experts; and (5) the scientific evidence is widely available. Failure on any factor traditionally weighs heavily against a finding of currently accepted medical use. According to Duane Boise, CEO of MMJ International Holdings and a participant in the hearing, Dr. Akinfiresoye testified that marijuana failed on the first three prongs. This directly opposes the HHS recommendation, which concluded marijuana has accepted medical use and should be moved from Schedule I to Schedule III.

The administrative significance cannot be overstated. Federal rulemaking, including Scheduling actions under the Controlled Substances Act, is governed by the Administrative Procedure Act (APA). A final rule must be supported by a rational basis in the administrative record. When an agency's own scientific staff presents conclusions that contradict the basis for a proposed rule, the agency faces a severe vulnerability under the 'arbitrary and capricious' standard of review. Courts have long held that an agency must engage with its own experts' contrary findings and provide a reasoned explanation for departing from them. If the DEA Administrator finalizes the Schedule III rule without addressing Dr. Akinfiresoye's testimony, litigants will almost certainly argue that the agency ignored a critical part of the record, rendering the rule unlawful.

Beyond the APA, the testimony injects uncertainty into the deference doctrines that often shield agency scientific judgments. While Chevron deference was recently curtailed by the Supreme Court, Skidmore deference and the agency's own expertise still carry weight. Here, however, the agency's own expert has undermined the claimed expertise base. This could shift the judicial calculus, making it harder for the DEA to prevail in a challenge from either side—whether from opponents of rescheduling who argue the HHS science is flawed, or from reform advocates who may later challenge restrictions under Schedule III.