Today, President Trump signed an Executive Order (EO), Increasing Medical Marijuana and Cannabidiol Research. While the EO is being widely hailed as a significant advancement in marijuana legalization, in fact, the EO is extremely limited as to marijuana and has no independent legal effect at all on rescheduling marijuana. The EO does represent a potentially significant win for the intoxicating hemp industry; however, there are, again, no immediate legal impacts.
The EO instructs as follows:
- Attorney General Pam Bondi shall expedite the process of rescheduling marijuana from a Schedule I controlled substance to a Schedule III controlled substance under the Controlled Substances Act (CSA) per 21 U.S.C. § 81(a).
- Assistants to the President “shall work with the Congress to update the statutory definition of final hemp-derived cannabinoid products to allow Americans to benefit from access to appropriate full-spectrum CBD products while preserving the Congress’s intent to restrict the sale of products that pose serious health risks and “shall work with Congress shall update hemp-derived cannabinoid definitions, enabling safer full-spectrum cannabidiol (CBD) access via new THC limits per serving/container and CBD: THC ratios, with agency input.”
- Department of Health and Human Services (HHS), U.S. Food and Drug Administration (FDA), Centers for Medicare & Medicaid Services (CMS), and National Institutes of Health (NIH) shall develop real-world evidence research models for CBD access and standards of care, focusing on vulnerable groups like youth.
Impacts of the EO on Marijuana
As the EO acknowledges, the process of rescheduling marijuana from an illegal Schedule I controlled substance to Schedule III has been ongoing for over two years. Schedule I substances are those, such as heroin, with a high abuse potential and no current accepted medical use; Schedule III substances, such as anabolic steroids and acetaminophen with codeine, that have medical uses and a moderate to low potential for physical and psychological dependence. HHS recommended to the Drug Enforcement Administration (DEA) in August 2023 that marijuana be rescheduled, as the agency had found sufficient data to support some limited medical uses for marijuana. On May 21, 2024, the Department of Justice (DOJ) (DEA is part of DOJ) proposed to adopt this recommendation and transfer marijuana to Schedule III of the CSA via a change to DEA regulations.
The CSA requires that this rescheduling be made through formal rulemaking on the record after opportunity for a hearing before the DEA Administrative Law Judge. The hearing, originally scheduled in 2024 to begin in January 2025, was postponed pending resolution of litigation alleging that DEA was impermissibly hostile to the rescheduling and had conflicts of interest and engaged in improper communications with biased parties. This litigation is still ongoing, and the hearing has not been rescheduled.
The CSA, as enacted by Congress, mandates rescheduling only through formal rulemaking. As such, the EO cannot change the law or the process that the DEA must follow to reschedule marijuana. The EO instructs the Attorney General to expedite this process already underway. It is unclear, however, if the postponed DEA hearing will resume while the appeal of the allegations of DEA misconduct is still pending.
Hemp
The Agriculture Improvement Act of 2018 (2018 Farm Bill) legalized “hemp” under federal law by removing it from the definition of marijuana in the CSA. Under the 2018 Farm Bill, cannabis is considered federally legal hemp and not marijuana so long as it contains no more than 0.3% delta-9 THC on a dry-weight basis. Any product with more than 0.3% delta-9 THC on a dry-weight basis is federally illegal marijuana.
This narrow definition created a “loophole” that enabled the proliferation of products that meet the legal definition of “hemp” but contain intoxicating cannabinoids. These products have been extremely profitable for some hemp producers and retailers and have also attracted significant scrutiny and concern.
Closing this loophole that allowed the legal marketing of hemp-derived intoxicating cannabinoids has also been a high priority for legislators. Many States have restricted or banned the products, and members of Congress have for many years. Last month, a provision included in the Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026 (this Act funded the federal government and ended the government shutdown) dramatically altered the market for products containing intoxicating cannabinoids derived from federally legal hemp, including CBD. Section 781 of the Act redefines hemp in a way that will make most intoxicating hemp-derived cannabinoid products illegal beginning November 12, 2025. We describe Section 781 in detail in this memo.
The EO cannot undo this Act of Congress without other duly enacted legislation. Indeed, the instruction to White House staff is to “work with Congress” to “update” the Act. While the inclusion of this instruction in the EO represents a significant lobbying win for the hemp industry, which has urgently sought some remedy to Section 781’s prohibitions since their enactment in November, there still must be an amendment to the law before there will be any relief for intoxicating hemp products.
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OFW Law will continue to monitor this quickly evolving situation. We also note that certain actions taken based on the EO could be challenged in court. We hope this proves useful. Please contact us if you have any additional questions
