Federal Cannabis Rescheduling: Where Schedule III Stands in February 2026

Two months after President Trump signed an executive order directing "expeditious" rescheduling of marijuana from Schedule I to Schedule III, cannabis remains exactly where it has been since 1970 — in the most restrictive federal classification alongside heroin and LSD. The gap between political promise and bureaucratic reality defines this moment. Attorney General Pam Bondi has said nothing publicly about the directive. The DEA has no administrative law judge to conduct hearings. And a bloc of nearly 50 Republican lawmakers is actively working to ensure rescheduling never happens — or takes decades.

Yet the administration is simultaneously advancing a Medicare CBD pilot program, and FDA Commissioner Marty Makary has acknowledged the medical value of cannabis even while raising alarms about its risks. For the millions of patients, operators, and advocates watching this process, the picture is one of genuine momentum colliding with entrenched institutional resistance.

Where Cannabis Rescheduling Stands Right Now

Here is where things stand as of mid-February 2026:

• Cannabis is still Schedule I. No final rule has been published. No interim rule has been issued.
• The DEA has no judge. The administrative law judge who was hearing the case retired in August 2025. There is no replacement.
• The AG has gone silent. Bondi has made no public statement on rescheduling. A DOJ official told Salon only that the department was "working to identify the most expeditious means of executing the EO."
• 48 Republican lawmakers oppose it. Twenty-two senators and 26 House members have formally urged the administration to abandon rescheduling.
• The Medicare CBD pilot is moving forward. CMS has internally finalized rulemaking for an April 2026 launch.
• Congress declined to block it. A spending bill provision that would have barred DOJ from using funds to reschedule was stripped from the final bipartisan bill.

On December 18, 2025, Trump signed Executive Order 14370, titled "Increasing Medical Marijuana and Cannabidiol Research," directing AG Bondi 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" Reuters. The signing ceremony featured HHS Secretary Robert F. Kennedy Jr., CMS Administrator Dr. Mehmet Oz, NIH Director Jay Bhattacharya, and NIDA Director Nora Volkow. For a full breakdown of the cannabis rescheduling executive order and what Schedule III would mean for the cannabis industry, see our coverage from December.

The EO does not itself reschedule marijuana. It directs the completion of a rulemaking process that traces back to October 6, 2022, when President Biden directed HHS and the AG to review marijuana's scheduling. HHS completed its scientific evaluation on August 29, 2023, with Assistant Secretary for Health Rachel Levine formally recommending Schedule III based on FDA's finding of "credible scientific support" for cannabis in treating pain, anorexia, and chemotherapy-induced nausea. The DOJ published a Notice of Proposed Rulemaking on May 21, 2024 (89 Fed. Reg. 44,597), drawing approximately 43,000 public comments, with the vast majority supporting rescheduling or descheduling.

What followed was near-total silence. Over 40 days after the EO, DOJ deputy director of public affairs Wyn Hornbuckle told Marijuana Moment: "We don't have any comment or updates."

The DEA Hearing Is Frozen With No Judge

The administrative proceedings that must precede any final rule are in a state of extraordinary paralysis — a continuation of the delays that have plagued this process for years.

After the NPRM was published, the DEA announced a formal administrative hearing and designated 25 participants. Chief Administrative Law Judge John J. Mulrooney II subsequently found that former DEA Administrator Anne Milgram had sent "cure letters" to anti-rescheduling groups including Smart Approaches to Marijuana (SAM), helping them qualify as designated participants. Pro-rescheduling parties alleged improper ex parte communications between DEA leadership and SAM president Kevin Sabet.

On January 13, 2025, Mulrooney denied the motion to remove DEA as proponent of the rule but granted an interlocutory appeal, canceled the scheduled hearing, and stayed all proceedings pending resolution. He wrote that the government's failure to acknowledge the gravity of alleged ex parte communications "demonstrates an arrogant overconfidence that may not serve it well in the future" Marijuana Moment.

Then Mulrooney retired. His August 1, 2025 departure left the DEA with no administrative law judge — not just for the rescheduling case, but for any enforcement matter. In his retirement notice, he stated: "My retirement will leave the DEA with no Administrative Law Judge to hear this matter."

As of the January 6, 2026 joint status report — the fourth filed — the interlocutory appeal "remains pending with the Administrator" and no briefing schedule has been set. Nearly a full year after the appeal was accepted, nothing has moved. DEA Administrator Terrance Cole, confirmed by the Senate in mid-2025 after promising that rescheduling would be "one of my first priorities," has made no public statement on it since taking office.

48 Republican Lawmakers Want Rescheduling Killed

The most formidable obstacle is not procedural but political. On the eve of the executive order, 22 Republican senators — led by Sen. Ted Budd (R-NC) and including Senate Majority Whip John Barrasso, Republican Conference Chair Tom Cotton, and Mitch McConnell — sent Trump a letter urging him not to proceed. They argued rescheduling would "undermine your strong efforts to Make America Great Again," give cannabis companies $2.3 billion in tax breaks, expose youth to addiction, and benefit "bad actors such as Communist China."

The following day, 26 House Republicans led by Rep. Pete Sessions (R-TX) and Rep. Andy Harris (R-MD) sent a parallel letter to Bondi.

Harris, chair of the Freedom Caucus, has been the most blunt. In comments published by Marijuana Moment on February 16, 2026, he said: "On this one, they should take about 20 years to grind." He added: "All I know is every day that goes by and it's not rescheduled is another good day. I don't think I've been subtle about it." House Speaker Mike Johnson phoned into a December 9 Oval Office cannabis strategy meeting to actively oppose the plan.

These lawmakers tried to block rescheduling legislatively. In September 2025, the House Appropriations Committee advanced a spending bill provision barring DOJ from using funds to reschedule. But that provision was stripped from the final bipartisan FY2026 appropriations bill, which passed the House 397–28 on January 8 and the Senate 82–15 on January 15, defeating a last-ditch amendment from Senators Budd and Lankford to reinsert it. Congress ultimately declined to block rescheduling authority — a significant political signal, even if implementation remains stalled.

The Administration's Contradictions

The Trump administration's cannabis posture is defined by contradiction.

Attorney General Bondi did not attend the EO signing ceremony, has made no public statement on rescheduling, and missed a congressionally mandated January 2026 deadline to issue guidelines for easing barriers to Schedule I research. Her track record is not encouraging for advocates: as Florida AG, she called a 2014 medical marijuana ballot initiative "misleading" and served on an opioid crisis board that labeled cannabis a gateway drug.

Meanwhile, the Trump DOJ internally rescinded Biden's policy of non-prosecution for marijuana possession in September 2025, directing "rigorous" prosecution — a policy publicly announced by Wyoming U.S. Attorney Darin Smith in November Marijuana Moment. On February 4, 2026, Trump signed legislation preventing Washington, D.C. from legalizing marijuana sales.

And the anti-rescheduling forces are already preparing for litigation. Smart Approaches to Marijuana has retained former Attorney General Bill Barr to sue to reverse rescheduling the moment a final rule is issued.

The administration is simultaneously pushing rescheduling, prosecuting possession more aggressively, blocking D.C. legalization, and advancing a Medicare CBD pilot. These are not necessarily contradictory from a policy perspective — medical access and recreational enforcement can coexist under Schedule III — but they create a landscape where the direction of federal cannabis policy is genuinely unclear.

What FDA Commissioner Makary Is Saying About Medical Cannabis

FDA Commissioner Marty Makary delivered the administration's most substantive public comments on cannabis in a February 11, 2026 appearance on Fox Business's Varney & Co., prompted by the New York Times editorial board's February 9 reversal of its decade-long pro-legalization stance.

Makary struck a deliberately dual-toned message. On the medical side, he stated: "We are also in the Trump administration very serious about making sure that the medicinal purposes — that is, the indications where people find benefit in medical conditions, for example, with chronic terminal cancer — is advanced. And so we've taken action to change the scheduling from Schedule I to Schedule III."

On risks, he was equally emphatic: "The marijuana today is not the marijuana of hippies. It's 10 to 20 times stronger, and new research is showing that its effect on the developing adolescent mind is different than in an adult." He warned that cannabis "can result in psychosis diagnoses later in life" and cited cannabis hyperemesis syndrome, fatigue, and impaired learning and judgment among young users.

Makary's concerns are consistent with his pre-commissioner writings. In his 2024 book Blind Spots, he questioned marijuana's safety and described it as a gateway drug. At a July 29, 2025 press event, he stated: "Cannabis use disorder is a real thing, and there are now studies linking it to psychosis and even cardiovascular problems."

The scientific community is divided on the psychosis link. NORML's Paul Armentano has noted that acute cannabis-induced psychosis is rare and typically involves predisposition. A 2023 AMA study found no statistically significant increase in psychosis-related diagnoses in states where marijuana was legalized. And Johns Hopkins researcher Ryan Vandry acknowledged a "strong correlation" but said "causality on someone who would not otherwise develop psychosis is still questionable."

Why does the FDA commissioner's stance matter? Because Schedule III implementation — how research is expanded, what conditions qualify, and how the Medicare pilot develops — will be shaped substantially by FDA's posture. A commissioner who affirms medical value while emphasizing risk signals a cautious, narrowly scoped implementation rather than a broad opening.

The Medicare CBD Pilot: A Narrow but Historic First

The December 18 executive order also directed creation of a Medicare CBD pilot program through the CMS Innovation Center, offering eligible seniors up to $500 per year in hemp-derived CBD products when recommended by a physician.

According to Charlotte's Web co-founder Jared Stanley, speaking on an industry webinar around February 11, 2026, CMS internally finalized the rulemaking approximately two weeks prior, though no formal public announcement had been made as of February 16. Charlotte's Web and CV Sciences have announced participation.

The pilot is being implemented through existing CMMI models — the Long-term Enhanced ACO Design (LEAD) Model launching January 2027, ACO REACH for 2026, and the Enhancing Oncology Model — using a "Substance Access Beneficiary Engagement Incentive" that allows model participants to consult with patients about eligible hemp products. Initial enrollment is estimated at 8,000–12,000 patients, primarily older adults with chronic pain, particularly cancer-related. The April 2026 target launch would make it the first federal program to provide CBD coverage through Medicare.

Critical Caveats

The pilot covers only hemp-derived CBD — not THC products of any kind. CMS's own FAQ on the Substance Access BEI contains language suggesting dispensing would be "funded entirely at the participant's expense," creating tension with Dr. Oz's public "no charge" promise. And the FY2026 Agriculture Appropriations Act changes the legal definition of hemp effective November 2026, potentially complicating CBD supply chains by restricting most hemp-derived THC products during intermediate manufacturing stages.

What Schedule III Would Actually Change — and What It Would Not

The practical consequences of rescheduling are simultaneously transformative and more limited than many expect.

What Would Change

The single largest impact is elimination of the Section 280E tax burden. Currently, cannabis businesses cannot deduct ordinary business expenses — rent, payroll, marketing, administrative costs — resulting in effective tax rates of 70–90% compared to the standard 21% corporate rate. Rescheduling would unlock an estimated $2.3 billion in annual industry tax savings. A typical dispensary could save roughly $268,000 per year, with high-volume locations saving up to $800,000.

Beyond taxes, rescheduling would reduce research barriers by easing DEA registration requirements, encouraging institutional participation, and making R&D tax credits available to cannabis businesses for the first time. The research landscape for cannabis-based therapies would expand significantly.

It would also incrementally improve banking access, though rescheduling alone won't solve cannabis banking. The Congressional Research Service has stated definitively that rescheduling "is not likely to alter substantially the risk profile" for financial institutions serving cannabis businesses. Comprehensive banking reform still requires legislation like the SAFE Banking Act.

What Would Not Change

Rescheduling does not legalize cannabis. It does not bring state-authorized cannabis operations into compliance with federal law. It does not create insurance coverage for medical marijuana. It does not permit interstate commerce. Recreational cannabis remains federally illegal. Existing state programs — from Florida to Ohio to Pennsylvania — would continue operating under state law using physician "recommendations" rather than federal prescriptions.

The Cannabis Regulators Association (CANNRA), representing agencies from 46 states and territories, submitted a formal comment to the DEA that deliberately took no position on rescheduling but requested federal guidance in six areas: enforcement priorities, federal-state engagement, interstate issues, research protocols, tax implications, and product safety coordination. CANNRA Executive Director Gillian Schauer warned against over-interpretation: "It's hard to see the big headlines of 'Marijuana rescheduled to Schedule III' ... those things are not true as of now."

Eight Republican state attorneys general, led by Nebraska AG Mike Hilgers, issued a joint statement the day of the EO opposing rescheduling. Some states have "trigger laws" requiring regulators to re-evaluate cannabis' legal status following any federal scheduling change — creating immediate regulatory obligations if a final rule is ever published.

Three Legal Pathways Forward — and What to Watch

Legal experts identify three potential pathways for AG Bondi to move rescheduling forward:

Path 1: Complete the existing rulemaking. This means resolving the frozen interlocutory appeal, appointing a new ALJ, completing the hearing, and publishing a final rule. It is the most legally defensible approach but also the slowest — potentially years, which is exactly what opponents want.

Path 2: Use the Section 811(d)(1) "treaty exception" pathway. This provision of the Controlled Substances Act allows expedited rulemaking to comply with international treaty obligations. It was used in 2018 to schedule Epidiolex. Attorney Shane Pennington, representing pro-rescheduling parties, has argued Bondi could theoretically cancel the hearings — rendering the appeal moot — and publish a final rule in as little as "five days." This is the fastest route but would virtually guarantee legal challenge.

Path 3: Resume the hearing track. Appoint a new ALJ, resolve the appeal, and restart the formal hearing process from where it left off. This preserves procedural integrity but means the 25 designated participants — including anti-rescheduling groups — would have their day in court.

SAM's retention of former Attorney General Bill Barr to litigate signals that any pathway to a final rule will face immediate legal challenge. The question is not whether rescheduling will be challenged, but which pathway produces a rule most likely to survive it.

What Patients and Businesses Should Watch

The most critical near-term signal is whether Bondi opts for the treaty exception pathway under Section 811(d)(1), bypassing the frozen hearing process entirely. If she does not act by mid-2026, the political window created by Trump's executive order may begin to close — and a process that began under one president and was inherited by another could stall indefinitely under bureaucratic weight and political opposition.

Regardless of what happens at the federal level, state medical marijuana programs continue to operate. Your medical marijuana card remains essential for legal access to dispensaries, tax savings over recreational prices, higher possession limits, and employment protections. If you're considering certification, find a licensed physician in your state. If you're already certified, check your state's qualifying conditions and cannabis laws for any recent changes.

For the latest updates as this process unfolds, find a dispensary near you or explore our state-by-state coverage to understand how federal rescheduling would affect your specific program.

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This article reflects the status of federal cannabis rescheduling as of February 16, 2026. It will be updated as developments occur.