The guidance that may never come

Issue 7 of The Federal Cannabis File. Sent to subscribers on September 30, 2026. Published here for the record. The newsletter’s home, with every issue, is kocotlaw.com/federal-cannabis-file.

On September 15, California’s cannabis director said something operators should pay attention to:

At the same time, DEA has asked California for information about medicinal cannabis production and dispensing. And DCC’s own federal-rescheduling resource page says DEA has indicated that, rather than briefing individual states, it plans to release implementation information publicly and all at once.

The broader marijuana rescheduling hearing ended in July. Post-hearing briefs were filed in August. The Government itself asked the administrative law judge to recommend Schedule III. So maybe DEA is simply waiting to see what happens before explaining how all of this works.

That sounds reasonable, and operators’ natural response may be to wait and see. However, a wait-and-see approach may be dangerous.

The hearing is not deciding the medical system

The medical marijuana that was moved to Schedule III in April is not what that proceeding is deciding. The narrow question in the hearing is whether the remainder of marijuana should move from Schedule I to Schedule III.

Whichever way the Administrator ultimately decides that question, it does not tell a medical operator how DEA expects the system created in April to work tomorrow morning. And it may be a mistake to assume DEA will eventually publish one document that answers everything.

What if the answer never comes?

DEA has been quiet on guidance, but not on inspections. Reports from Colorado show that at least one DEA field division has followed up on applications with a detailed questionnaire covering issues like product types, suppliers, labeling and packaging, and disposal practices. The inspection process and follow-up questions also appear to vary by region.

The registration application itself also tells operators a lot about what DEA wants to see. It asks about procedures for ordering, receiving, inventories, storage, security, dispensing, distribution, destruction and disposal, theft and loss reporting, due diligence, corresponding responsibility and record maintenance.

For now, some of the most important practical answers may become visible first through the questions DEA repeatedly asks, the deficiencies it identifies, the registrations it grants or denies, the conditions it imposes, the positions it takes during inspections and, eventually, the cases it brings. Waiting for the broader rescheduling decision does not solve problems for operators in the here and now.

Outcome one: adult-use stays in Schedule I

Suppose the Administrator declines to move the remainder of marijuana or simply does not decide anytime soon. The divide created in April remains.

Marijuana subject to a qualifying state medical marijuana license sits in Schedule III. Adult-use marijuana remains in Schedule I. The medical side has the new federal registration pathway and § 280E benefits. The adult-use side does not.

That creates an obvious incentive for businesses to move as much qualifying activity as they lawfully can into the medical channel and for adult-use businesses to determine whether establishing a medical operation makes sense.

California has already responded to that pressure. Emergency regulations effective June 4 allow certain retailers with combined adult-use and medicinal authority to separate those operations into distinct A- and M-designated licenses at the same premises. Where separate entities are used, the rules require cannabis goods to be physically separated by license, inventory and tracking records to distinguish between them, and business records to be maintained separately. The emergency rules are currently scheduled to expire December 2 unless extended or replaced.

But California can only answer the California side. It cannot decide whether the DEA will allow operators to hold both adult-use and medical licenses. Similarly, the State cannot tell a dual adult-use and medical operator what the DEA will expect when medical and adult-use businesses share owners, employees, vendors, premises, or infrastructure if such a structure is allowed. And it cannot resolve every question about unregistered licensees, interstate transfers, or the federal consequences of state programs that prioritize participants with past convictions.

Outcome two: the remainder of marijuana moves to Schedule III

Now suppose the Administrator adopts the Government’s position and moves the remainder of marijuana to Schedule III. That wouldn’t magically convert the existing state adult-use industry into a federally authorized Schedule III retail system.

The April pathway is expressly limited to medical activity. Registrations issued under that pathway do not authorize the manufacture, distribution, dispensing, or use of marijuana for nonmedical purposes.

So, broader Schedule III placement would resolve one question (the schedule in which the remainder of marijuana sits) while immediately raising another:

Outcome two does not make the implementation problem disappear. It just changes the questions that need answering.

The operator question is simpler

This is why I think the industry may be focusing too much on when DEA will finally explain itself. Maybe it will. Maybe DEA publishes comprehensive guidance. Maybe the Administrator’s broader rescheduling decision answers some additional questions.

But we have to separate academic LinkedIn debates about these issues from how businesses should view the situation in practical terms. An operator cannot put their compliance program on hold assuming the government will eliminate ambiguity before it expects compliance.

Stop waiting for the perfect answer

The states are right to keep asking DEA for guidance. And operators should keep watching the broader rescheduling proceeding. But watching and waiting is not a compliance strategy.

DEA may eventually publish the guidance everyone is waiting for. Or some of the most important answers may arrive first in an application follow-up, during an inspection, in a registration decision, through an enforcement position, or eventually in an administrative or judicial decision.

That is a much worse time to discover what the federal government thinks your compliance program was supposed to look like. So audit it now.

Know which activity you are treating as medical and why. Make your channels traceable. Test the SOPs DEA is already asking about. Make sure your physical inventory and your records tell the same story.

The industry may still be waiting for federal guidance, but your compliance program should not be.

Thanks for reading,
Ryan

Attorney advertising. This issue is general information, not legal advice, and reading it does not create an attorney-client relationship.