Trump order to expedite cannabis rescheduling unlikely to shield users

The White House order issued in mid-December directing federal agencies to accelerate the rescheduling of marijuana and expand research on cannabis products signals a major shift in federal posture, but legal experts say it is unlikely to halt prosecutions or instantly change the law. The directive tasks the Department of Justice with completing rulemaking to move marijuana out of Schedule I and toward Schedule III and asks HHS, the FDA, NIH and CMS to broaden research, set standards and pilot payment for cannabidiol treatments.

The order instructs agencies to develop a regulatory framework for hemp-derived cannabinoid products, including possible limits on THC per serving and guidance on CBD-to-THC ratios. Administration materials highlight the medical potential of cannabinoids and direct federal science agencies to produce methodologies to support clinical study and inform standards of care. The policy package is intended to reduce barriers to research and to reposition federal regulators toward medicinal evaluation.

But legal analyses from law firms that briefed industry leaders emphasize that the president cannot, by executive fiat, change controlled substance scheduling under the Controlled Substances Act without agency rulemaking. The rulemaking process requires notice-and-comment procedures and the development of administrative records; until those steps are complete, statutory schedules and criminal penalties tied to them remain in force. A Jan. 12 analysis by public health and legal experts reached the same conclusion, saying the order is unlikely to materially reduce criminal penalties for many people.

An expert, Hurd, put the tension succinctly: rescheduling could be interpreted by some as a green light for medicine but cautioned that it "does not say" cannabis is medicine and that cannabis "has not been shown to have any accepted medical use." Legal advisers note that while the administration's endorsement of HHS, FDA and NIDA findings would be a significant reframing, it is a policy signal rather than an immediate statutory change.

Practical limits to the order are numerous. Rescheduling would not legalize marijuana nationwide, would not automatically authorize interstate commerce in cannabis, and would not by itself eliminate tax and regulatory constraints such as Internal Revenue Code Section 280E. Industry estimates cited in briefings suggest that if 280E were removed retailers in high-volume states might save on average about $805,000 annually per store, but analysts caution that rescheduling alone does not remove 280E or other structural barriers. Employer drug policies, state criminal statutes and many regulatory frameworks would remain unchanged unless separately addressed by agencies or Congress.

The political scene is mixed. A group of Senate Republicans formally urged the White House not to proceed, even as a majority of Senate Republicans did not join that request. Congressional appropriations language protecting certain states from federal interference with medical cannabis law was left intact in recent negotiations, but specific jurisdictions — including Idaho, Kansas, Nebraska and American Samoa — were omitted from the protection, creating potential enforcement variations across the country.

With cannabis legal for medical use in 40 states and recreationally in 24, and with the Centers for Disease Control and Prevention estimating about 30 percent of users develop cannabis use disorder, the administration's move is consequential. Still, experts and legal analysts stress the bottom line: the December order is a major policy signal that could reshape research priorities and litigation, but it does not yet change criminal law or guarantee protection for users facing prosecution until formal rulemaking or congressional action follows.