Yesterday, an order signed by Acting Attorney General Todd Blanche on April 22 and effective April 23 moves two categories of marijuana from Schedule I to Schedule III of the Controlled Substances Act. The first category is FDA-approved drug products containing marijuana. The second is marijuana, subject to a state-issued license to manufacture, distribute, or dispense for medical purposes. That second category is the one that matters for the conversation about trucking, because it covers the dispensary down the road from your terminal that a driver with a state medical marijuana card can legally walk into in 40 states.
Everything else stays exactly where it was. Recreational marijuana remains Schedule I. Any marijuana that is neither in an FDA-approved product nor covered by a state medical marijuana license remains Schedule I. The guy smoking a joint in a state where adult use is legal is still in Schedule I territory. The driver who tested positive last week is still in the Clearinghouse. None of that changed.
What changed is the legal underpinning for DOT’s ability to require marijuana testing at all.
This is the part that most coverage of the rescheduling action either glosses over or gets wrong, and it is the part that Brandon Wiseman at Trucksafe has been raising since the Trump executive order dropped in December and has now put plainly in writing following yesterday’s order. The foundation for DOT’s mandatory testing authority flows through the Department of Health and Human Services. HHS issues the Mandatory Guidelines for Federal Workplace Drug Testing Programs. Those guidelines authorize regulated employers to test only for substances listed in Schedules I and II of the Controlled Substances Act. The Omnibus Transportation Employee Testing Act of 1991, the statute that gives DOT its testing authority in the first place, requires DOT to follow HHS scientific and technical guidelines.
If state-licensed medical marijuana is no longer a Schedule I or Schedule II substance, HHS’s statutory authority to include THC in the mandatory federal testing panel is at a minimum an open question. DOT’s 49 CFR Part 40 names marijuana specifically rather than referencing it by schedule, which some have argued insulates the testing program from a scheduling change. That argument has always been legally optimistic. If HHS cannot authorize testing for a Schedule III substance without new rulemaking, then Part 40 has to conform to that, whether it names the substance or not.
The most likely resolution is a congressional or administrative carve-out that explicitly preserves mandatory marijuana testing for safety-sensitive transportation workers regardless of scheduling status. That carve-out does not exist yet. The DEA order itself acknowledges the potential for significant economic impacts from the rescheduling action while simultaneously stating that its notice-and-comment exemption under the treaty-obligations pathway means it was not required to take public input before this went into effect. The trucking industry did not get a comment period on a rule that has direct implications for its drug testing program.
ODAPC’s most recent guidance on marijuana is dated December 19, 2025, written before rescheduling occurred, and states that marijuana remains unacceptable for safety-sensitive employees subject to DOT testing. That guidance is now technically pre-rescheduling guidance and has not been updated. The controlling practical answer for every fleet, every driver, and every MRO today is that 49 CFR Parts 40 and 382 have not changed, zero tolerance remains in effect, and a positive test still results in a driver being placed in the Clearinghouse. Do not use marijuana. That has not changed.
There is a difference between the practical answer and the structural answer, and the trucking industry needs both.
The conversation about marijuana and trucking has been almost entirely about CDL holders and the FMCSA Clearinghouse. The Clearinghouse currently shows 184,337 commercial vehicle drivers in prohibited status. Marijuana accounts for roughly 60 percent of all positive tests since the database launched. Those numbers are real and they are significant.
What the conversation has not addressed is the much larger and much murkier population of CMV operators who are not CDL holders.
Federal regulations under 49 CFR Part 391 cover drivers of commercial motor vehicles that require a CDL. But there is a separate and considerably larger population of drivers operating vehicles that qualify as CMVs under state or federal definitions without triggering CDL requirements. Straight trucks under 26,001 pounds. Cargo vans. Pickup trucks towing trailers in certain configurations. Passenger vehicles are used for-hire transportation in some jurisdictions. These operators are subject to varying levels of drug testing requirements depending on their specific regulatory classification, the state in which they operate, the type of cargo they carry, and whether they cross state lines.
For that population, the rescheduling creates genuine uncertainty about which standards apply, because their testing requirements are less uniformly codified than those in the CDL Clearinghouse framework. Some of those operators are covered by DOT-mandated testing programs with the same zero-tolerance standard as CDL holders. Others operate under state programs with different standards. A subset operates in gray zones where no one has clearly established which standard controls apply.
The rescheduling action does not change any of these standards today. But it creates a legal environment where challenges to those standards become easier to mount, particularly in states where medical marijuana is now a Schedule III substance under federal law and where a driver can argue that their prescribed use of a federally recognized Schedule III controlled substance should not disqualify them from operating commercial equipment.
That argument will lose in court today because Part 40 and Part 382 are still in effect and ODAPC guidance still says zero tolerance. But the argument becomes structurally stronger after yesterday in ways it was not before. And some of those challenges will be filed in jurisdictions where state courts are more receptive to them than federal courts, particularly in states that have been aggressive about protecting medical marijuana patients from employment discrimination.
The DEA order itself is a piece of legal engineering that warrants some respect. Acting AG Blanche used the treaty-obligations pathway under 21 U.S.C. 811(d)(1) to issue this as a final order without notice-and-comment rulemaking, bypassing the procedural pathway that got the Biden administration’s rescheduling effort killed by a D.C. Circuit stay last year. The Single Convention on Narcotic Drugs obligates the United States to schedule cannabis in a manner consistent with its treaty commitments, and the OLC opinion from April 2024 concluded that Schedule III satisfies those obligations. The order simultaneously establishes a nominal-price purchase-and-resale mechanism to satisfy the Single Convention’s requirement that a government agency serve as the exclusive purchaser of government-produced cannabis. This is not a casual policy move. It is a carefully constructed legal instrument designed to survive the challenge that killed the prior attempt.
Structural durability is relevant for trucking because it means this is unlikely to be rescheduled. The Biden administration’s rescheduling was stayed by federal courts almost immediately. The Blanche order was engineered specifically to avoid that outcome. Which means the industry needs to treat the legal question about DOT testing authority as a permanent structural question requiring a permanent answer, not a transitional issue that will resolve itself when the order gets struck down.
What the industry needs from federal authorities in the next 90 days is specific and can be stated plainly. ODAPC needs to issue an updated marijuana notice that explicitly addresses the post-rescheduling landscape and confirms the legal basis for continued zero-tolerance testing under 49 CFR Part 40. Congress or DOT needs to formally preserve the mandatory testing carve-out for safety-sensitive transportation workers regardless of scheduling status. And the DEA administrative hearing process, beginning June 29, which will address rescheduling of all marijuana rather than just the state-licensed medical category addressed in yesterday’s order, needs to produce an explicit analysis of the interaction between a hypothetical broader rescheduling and DOT’s testing authority.
Until those three things happen, the industry is operating on the practical answer while the structural answer remains open.
For now, the direction is clear. Zero tolerance. No medical exemption. A positive test is a Clearinghouse entry regardless of what the driver’s dispensary card says. The DEA changed a schedule. DOT did not change 49 CFR Part 40. Those two facts can coexist for the moment. The question is how long that moment lasts before the structural gap produces a legal challenge that the industry is not prepared to defend.
The post The Feds rescheduled marijuana. What happens in trucking? appeared first on FreightWaves.
