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This is the last of 13 posts describing the impacts of marijuana’s rescheduling. An homage to Phish’s historic run at Madison Square Garden in the Summer of 2017, Budding Trends Baker’s Dozen has addressed how rescheduling affects various areas of the law and our daily lives. We hope you’ve enjoyed the run.

The story of federal psychedelic policy over the last few years has been, in many ways, the story of two tracks running parallel — and occasionally colliding. On one track: a growing body of clinical research, bipartisan political support, and patient advocates pushing for therapeutic access to psilocybin, MDMA, ibogaine, and other psychedelic compounds. On the other track: a federal Schedule I classification that has treated these substances as having no accepted medical use and a high potential for abuse — a classification that, as we’ve argued before, is increasingly difficult to defend with a straight face.  So for those who have been following along here for a bit, our take on the April 2026 DEA rescheduling order may feel familiar and a little like déjà vu — federal signals that seem meaningful, caveats that keep the champagne corked, and a “we’ll believe it when we see it” posture that industry veterans have learned the hard way. But this time, I think the signals are different enough for us to take a fresh look through rose-colored glasses.

We don’t think there is any confusion that the DEA’s April 2026 final order does not cover psilocybin, MDMA, ibogaine, or any other psychedelic substances. Those substances are not marijuana. Their Schedule I classification remains unchanged.  But — and this is the same significant “but” we identified in our discussion of what the order means for hemp — it matters a great deal for the psychedelic industry anyway. The rescheduling order demonstrates, in a concrete and legally operative way, that the federal government is capable of moving substances out of Schedule I when the evidence, as well as political and public opinion, support the decision. The DEA’s willingness to use its existing authority to reschedule marijuana-derived medications and state-licensed medical marijuana programs is a proof of concept. The mechanism exists. The political will to use it appears to be materializing.

A Tale of Two Treaties

We wrote at the end of last week about how the manner in which Acting Attorney General Todd Blanche achieved rescheduling could dictate what comes next for other Schedule I substances like adult-use/recreational cannabis.  A quick summary for our purposes here may be helpful (although, I’d encourage you to read the entirety of the post):

  • “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”
  • “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”
  • In other words, Blanche bypassed the Administrative Procedure Act’s notice-and-comment requirements and the Controlled Substances Act’s ordinary scientific-findings prerequisites by invoking his authority under 21 U.S.C. § 811(D)(1) vis-à-vis the Single Convention on Narcotic Drugs.

This is where the path for psychedelics may diverge from marijuana. The Single Convention does not apply to psychedelics. The Single Convention was deliberately scoped to drugs with cannabis-, coca-, and opium-like effects. Later, as psychedelic drugs emerged and gained popularity, an entirely separate treaty was negotiated and signed in Vienna in 1971 to cover them: the Convention on Psychotropic Substances. Psilocybin, MDMA, LSD, mescaline, and most other psychedelics are scheduled under that 1971 Convention, not the Single Convention.

Why does this matter for potential rescheduling of psychedelics? The legal shortcut Blanche used to fast-track marijuana rescheduling — 21 U.S.C. § 811(d)(1) — specifically authorizes the attorney general to act without normal notice-and-comment rulemaking requirements in order to satisfy U.S. obligations under international treaties “in effect on October 27, 1970.” The 1971 Convention on Psychotropic Substances — the one governing most psychedelics — was signed in February 1971 and didn’t enter into force until 1976. It almost certainly does not qualify as a basis under Section 811(d)(1) because it was not an international treaty in effect on October 27, 1970. So what? The treaty-authority fast track that allowed Blanche to bypass the Administrative Procedure Act and issue the marijuana order immediately is very likely not available for psychedelic rescheduling.

At first glance, that sounds like bad news. It isn’t — or at least, it isn’t only bad news. It just means that psychedelic rescheduling has to find a different avenue. Rescheduling could certainly proceed under the ordinary Section 811(a)/(b) process — standard APA notice-and-comment rulemaking grounded in HHS scientific and medical findings, not treaty obligations. That process is slower and requires more procedural steps. But it also isn’t constrained by the treaty language that may ultimately limit what the marijuana rescheduling order can accomplish. A psychedelic rescheduling order built on HHS scientific findings and the APA record would rest on a broader and arguably more durable legal foundation.

Even If Not a Roadmap, Could Marijuana Rescheduling Still Be a Guide?

The rescheduling order also matters because of the record it creates. The arguments developed in the marijuana rescheduling process — about therapeutic benefit, about appropriate scheduling criteria, about the inadequacy of Schedule I for substances with accepted medical applications — are directly applicable to any future psychedelic rescheduling debate.

When HHS evaluated marijuana for rescheduling in 2023, one of the questions it had to answer was whether the substance had an “accepted medical use in treatment in the United States.” The answer — built partly on decades of research conducted despite Schedule I restrictions, and partly on real-world evidence from state medical programs — was that it does. For psychedelics, the same question will eventually need to be answered. The clinical research currently underway, often at significant cost and logistical difficulty imposed by Schedule I, is how that answer gets built. The rescheduling of marijuana-derived medications proves the loop can be broken.

HHS’s 2023 scientific and medical evaluation — which concluded that state-licensed medical marijuana and FDA-approved marijuana medications have accepted medical use and a lower potential for abuse than Schedule I substances — laid the groundwork for rescheduling, even if the final order ultimately proceeded under the treaty-authority shortcut rather than the standard eight-factor rulemaking process. For a future psychedelic rescheduling proceeding, which we think would most likely go through the ordinary Section 811(a)/(b) path, that eight-factor HHS analysis would be the critical foundation. For psychedelics, that record is being built right now. The FDA’s Breakthrough Therapy designations for psilocybin and MDMA — which require a threshold finding of preliminary clinical evidence of substantial improvement over existing therapies — are an early but meaningful marker that the evidence is moving in the right direction. They are not an “accepted medical use” finding under the CSA. But they are the kind of scientific foundation that a future HHS evaluation would build on, in the same way that decades of state medical program data and clinical research built the foundation for the marijuana finding in 2023.

The difference, of course, is that marijuana rescheduling covered substances already in FDA-approved medications (Epidiolex, Marinol) and operating under established state medical programs. Most psychedelics don’t yet have a completed FDA approval — although psilocybin and MDMA are arguably not far from that threshold. The directive of Section 5 of Trump’s April executive order is clearly designed to create institutional pressure to move quickly once Phase 3 data is in hand. 

State medical marijuana programs were a meaningful component of the HHS evaluation that supported the 2026 rescheduling order. Real-world evidence — safety outcomes, regulatory compliance data, patient access records — gave HHS something concrete to point to. While we have yet to see the broad based acceptance of state legal psychedelic programs like we have in the cannabis industry, psychedelic programs seem to have big mo on their side. Oregon and Colorado have already enacted state-legal psilocybin programs — regulated service center models where trained facilitators administer psilocybin to adults in supervised settings. Oregon’s and Colorado’s programs could generate comparable evidence about psilocybin’s safety profile and therapeutic outcomes in supervised settings. Other states are actively developing frameworks. On its face, this looks a lot like the early days of state medical marijuana: state-level access outpacing federal law, operating in an enforcement gray zone, and building regulatory infrastructure that eventually contributes to federal reform.

There’s also a broader framing point worth making. For years, the federal government’s differing treatment of marijuana and psychedelics felt inconsistent — we wrote about that divide in 2023. The federal government now appears to be converging those tracks. Approved medications and state-licensed medical marijuana have a rescheduling pathway. Psychedelics have a Right to Try pathway, a presumptive rescheduling trigger when clinical trials are complete, and $50 million in federal support for state programs. The logic of the policy is becoming coherent in a way it wasn’t before.

The Stumbling Blocks

I’m optimistic, but I’m also a cynical litigator. And the cannabis analogy has real limits. Marijuana’s path from state-legal medical program to federal rescheduling took the better part of three decades and ultimately required FDA-approved medications — not just state programs — to clear the “accepted medical use” bar. And even then, rescheduling seemed to drag along even amidst clear direction from the president about what he wanted to see happen. The phrase fits and starts comes to mind.   

Additionally, psychedelics don’t have the same broad-based support among the American public that cannabis now enjoys. According to a 2025 Gallup survey, 64% of Americans support legal marijuana. Psychedelics don’t measure up. According to a 2025 RAND survey only 23% of American adults support the legal use of psilocybin mushrooms, and support for MDMA and LSD was closer to 10%.  Patience is a virtue though, and the public support for marijuana was built over decades of state-level reform and cultural normalization. According to RAND, the level of public backing for psilocybin resembles where marijuana stood in Gallup surveys from the late 1970s through the mid-1990s — right before California legalized medical marijuana in 1996 and public support began accelerating rapidly. Whether psychedelics follow that same trajectory is an open question.

So, What Does It All Mean?

Unfortunately, I don’t have a crystal ball. But the flurry of movement at the federal level — including rescheduling and the president’s April 18 executive order directed at psychedelics — is a legitimate cause for excitement for industry advocates and stakeholders. The April 2026 rescheduling order and the April 18 executive order together represent the most coherent federal policy statement on psychedelics we’ve seen. Indeed, in the last month, the president has directed FDA and DEA to establish a Right to Try pathway for psychedelic drugs, allocated $50 million in federal funding to states developing psychedelic treatment programs, formalized data-sharing among HHS, FDA, and the VA, and established a conditional rescheduling pipeline when a Schedule I substance successfully completes Phase 3 trials for a serious mental health disorder. Combine this with the potential roadmap from marijuana rescheduling and there’s a lot to look forward to.

Listen to this post

This is the tenth of 13 posts describing the impacts of marijuana’s rescheduling. An homage to Phish’s historic run at Madison Square Garden in the Summer of 2017, Budding Trends Baker’s Dozen will address how rescheduling affects various areas of the law and our daily lives. Enjoy the run.

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.

Is the Single Convention a Problem for Rescheduling Advocates?

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.

Does the Single Convention Limit the Adult-Use Path?

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:

  • Treaty flexibility under changing norms – The convention’s drafters did not anticipate modern regulatory models, and the treaty should be interpreted in light of subsequent state practice under international law (Vienna Convention on the Law of Treaties, Article 31(3)(b)). Several parties — Canada, Uruguay, Netherlands de facto — already permit adult use without withdrawal or formal treaty violation proceedings.
  • Political non-enforcement – The INCB has criticized Canada and Uruguay but has no enforcement mechanism. The U.S. could simply accept that tension and rely on the fact that the INCB cannot compel compliance. That approach sounds awfully similar to U.S. marijuana policy up to this point. I’m looking at you, Rohrabacher-Farr.
  • Withdrawal and re-accession – Some argue the only clean path for full adult-use legalization at the federal level is withdrawal from the Single Convention (permitted with six months’ notice under Article 46) and re-accession with a reservation — the path Uruguay and Canada have declined to take but that remains legally available. This may be unattractive politically and could be time-consuming, but do you think that would stop this administration?

A Deeper Strategic Problem

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.

Arguments in Support of Rescheduling Adult-Use Marijuana

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 scientific record already supports it. HHS concluded in August 2023 that marijuana has a currently accepted medical use and a lower abuse potential relative to other Schedule I and II substances. The DOJ Office of Legal Counsel opined in 2024 that neither international drug control treaties nor the CSA compels marijuana’s continued placement in Schedule I. These findings and opinions are not product-specific — they apply to marijuana as a substance, not just marijuana dispensed through a medical program. This opens the door to a DOJ argument along the lines of: “21 U.S.C. § 811(d)(1) permitted quick action for medical marijuana rescheduling because of the urgent need for patient access, but we believe all marijuana should be rescheduled through typical administrative procedures.” That dramatically reduces the legal significance of using 21 U.S.C. § 811(d)(1) in the April announcement and the heavy reliance on the Single Convention.
  • The medical/adult-use distinction is increasingly artificial. In states with both programs, the plant is the same. The THC content, the delivery mechanisms, the consumer health considerations — none of those change based on whether a customer has a medical certification. Drawing a Schedule I/Schedule III line at the licensing structure rather than the substance itself is hard to defend on scientific grounds.
  • State program reality. Forty states and the District of Columbia have state- or locally sanctioned medical marijuana programs. Many of those also have adult-use programs. The federal government is effectively administering two different drug schedules for the same substance sold in the same states — sometimes by the same operators under the same license. If the United States is not already considered to be in violation of its treaty obligations, it’s hard to see as a practical matter why it would be any different if adult-use marijuana also was rescheduled.
  • The dual-operator problem. Operators who hold both a medical marijuana license and an adult-use license in the same state now find themselves simultaneously subject to two different federal regimes within the same business. This creates compliance complexity that serves no clear public health purpose and that the hearing will likely hear about at length from industry participants. Again, it appears to look like a distinction without a difference and begins to look more like just plain common sense to proceed with full rescheduling.

Conclusion

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. We’ll be monitoring the developments and keep you apprised.  

Thanks for stopping by.