Cannabis Musings - April 29, 2026
Rescheduling is harder than it looks.
Friends – one of the upsides of the rescheduling meshugas is that we’ve gained a slew of new readers from sharing of our recent newsletters (thanks!), so I thought I’d (re)introduce myself. Hi. I’m Marc Hauser. I’ve been active in the licensed cannabis industry since 2018 as a lawyer, consultant, executive, teacher, and pundit. I’ve been a lawyer for about 28 years focused on deals and capital markets, including 15 years as internal deal counsel at Equity Group Investments, a private investment company founded by the late Sam Zell. I teach cannabis law at UNLV Law (and have taught it at Northwestern Law, my alma mater), speak frequently on the topic, and I’m part of the weekly This Week in Cannabis LIVE roundtable. I also write this here newsletter.
These Cannabis Musings, which have been going out weekly(ish) since 2018, are my attempt to make sense of the cannabis industry, with a particular focus on law and capital markets, and a bissel Yiddish. Thanks for joining us, and, if you like what you read, please consider tossing me a few shekels with a paid subscription!
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I had the honor and pleasure of talking about rescheduling’s impact on M&A and everything else at the PLI Cannabis: Legal and Business Fundamentals 2026 program earlier this week, and, talking to my peers in the cannabis bar, I can safely conclude that no one is completely confident about the meaning of the Blanche executive order. If you’ve been paying attention to this industry for long enough, this will not come as a surprise to you. If you’re new to the industry, you’ll soon learn that this should not come as a surprise to you. Paraphrasing one of my wise peers, it reads like it was written by someone whose boss yelled at them to just get something out already, dammit.
This is best evidenced by the confusion over the DEA licensing. As a reminder, the order sets up a process for state-licensed medical cannabis operators to register with the DEA on a short timeline, subjecting themselves to as-yet-fully-described DEA scrutiny and audit, and causing the DEA to become a drug dealer (by selling to, and buying back from, the DEA medical cannabis, at a nominal cost plus a servicing fee that I’ve heard estimated at $113/kg – not a lot, but in an industry with already tight margins, not helpful either).
The order also, as expected, adds to Schedule III of the list of controlled substances marijuana that is “in a U.S. Food and Drug Administration approved product or subject to a state medical marijuana license.” Notice what’s missing from that? Nothing about DEA registration or sale, which really doesn’t make sense, because why set up an entire framework for DEA involvement in a medical cannabis operator’s business in order to comply with the Single Convention, but not mention it when defining Schedule III cannabis?
Here’s the rub. If you’re a state-licensed medical cannabis operator, but not DEA registered, it could reasonably be read to mean that either:
You’re considered to be selling Schedule III cannabis, so you get the benefit of 280E no longer applying, but you’re still breaking federal law; or
You’re still considered to be selling Schedule I cannabis, so you’re still in 280E land and you’re still definitely breaking federal law.
And if you are DEA registered and work through the rigamarole, it could reasonably be read to mean that either:
You’re considered to be selling Schedule III cannabis, so you get the benefit of 280E no longer applying, and your operations are now fully legal (!) under federal law; or
You’re considered to be selling Schedule III cannabis, so you’re out of 280E land, but you’re still breaking federal law, only less so.
The order has effectively bifurcated the bifurcation of cannabis – bifurcation2 or quadfurcation, if you will. Clear as borscht.
Now, the growing consensus, based on a fair read of the final order in the context of an understanding of the intent, seems to be maybe a combination of:
No DEA registration? No problem - no 280E for you!
DEA registration? Mazel tov - you’re legal!
That’s definitely not legal or investment advice, and that consensus may very well change as we get more guidance from the various federal agencies. If you’ve got your own lawyer, definitely ask them what they think. In the meantime, patience will be necessary to fully understand what this all means, particularly if/how adult use cannabis is also rescheduled.
Once again, it seems like the industry has been served up underdrafted regulations that seasoned professionals can’t easily understand, further frustrating planning, operation, and investment. Mit shnai ken men nit machen gomolkes. (“You can’t make cheesecakes out of snow.”)
Two other thoughts about all of this. First, there’s a lot of questions about what this means for interstate commerce. Let’s say I’ve got a company in Mississippi that makes THC-infused knishes (for medical purposes, of course). My company is DEA-registered, state-licensed for medical operations, and it’s complying with all of the DEA’s rules. I’ve found a similar (DEA-registered, state-licensed, etc.) buyer for my DEA-blessed medical cannabis knishes in Florida. But, state laws don’t let me leave Mississippi with my tasty knishes, nor do Florida’s laws let my pillow potato-filled treats infused with medical-use THC in.
Let’s assume, arguendo, that my knish company and my potential customer are now legal under federal law (see above). In theory, I ought to be able to ship my knishes to Florida without any issues – easy if I’ve got my own truck, or maybe using a shipping service that itself is fully-licensed. Heck, I should be able to send those knishes through the U.S. Postal Service. However, my buyer and I will be violating the state laws prohibiting cross state lines.
Enter our cranky old friend, the dormant commerce clause. As long-time readers know, the dormant commerce clause is a regular part of the Cannabis Musings canon (alongside SAFE® Banking, obfuscating press releases, and the illegality defense). In short, this court-created concept says that states can’t impose an “undue burden” on interstate commerce. State laws that prohibit the crossing of state borders with licensed cannabis would seem to squarely violate the dormant commerce clause, but many federal courts have found otherwise, basically saying ‘yeah, but cannabis is illegal under federal law, so too bad, no Commerce Clause protection for you.’ But, if we have a form of federally legal cannabis, states couldn’t hide behind this defense that there’s no ‘interstate market’ for an illegal product under the dormant commerce clause, at least for DEA-blessed medical cannabis. Meaning that a challenge to these state laws ought to succeed for my THC knish company. (Still not legal advice.)
What does that mean, then, for states? Will they need to set up regulatory frameworks for imported DEA-blessed medical cannabis? How will seed-to-sale tracking work? Will trucks be able to cross through states that don’t permit cannabis at all? How’s the truck driver going to explain to the police officer that pulls them over that they’re carrying kosher DEA-blessed medical cannabis? So many questions.
Finally, a half-baked idea. As we know, bankruptcy courts (which are federal) don’t allow plant-touching companies to file for protection under the U.S. Bankruptcy Code, because public policy doesn’t want those courts supporting an illegal business. But, if a DEA-blessed medical cannabis operator were fully legally under federal law, it ought to be able to file for bankruptcy, no? So, if you’re currently operating in a medical-only state, but financially distressed, you could theoretically get your DEA registration and then immediately file for bankruptcy protection. Maybe. That is definitely not legal advice, but I’m tossing that one out there for our restructuring lawyer and banker readers to chew on. Think of the possibilities!
This is also why we referred to the order as a “federally-sponsored pension plan” for lawyers and accountants.
Be seeing you.
© 2026 Marc Hauser. None of the foregoing is legal, investment, or any other sort of advice, and it may not be relied upon in any manner, shape, or form. The foregoing represents my own views and not those of Jardín, B&Y Ventures, or anyone else who employs/hires me.
Watch me schmooze almost every Friday at Noon ET on This Week in Cannabis LIVE with Jeremy Berke and Jay Rosenthal of Cultivated Media and AnnaRae Grabstein and Ben Larson of the High Spirits Podcast. Access the livestream and recordings here.