The Cannabis Column
On July 8th the DEA formally rejected an administrative petition to remove marijuana from Schedule I of the Controlled Substance Act (CSA). I prepared and filed this petition in 2002 with the support of several advocacy groups and patients, collectively known as the Coalition for Rescheduling Cannabis (CRC). The petition’s rejection, though, is not the end but the beginning of the battle over marijuana’s regulatory status in the United States.
The DEA filed a lengthy report in the Federal Register detailing their reasons for retaining marijuana in the most restrictive schedule of the CSA. In short, they claim that marijuana has the highest potential for abuse when compared to other drugs, that it has no accepted medical use in the United States, and that it is unsafe for use under medical supervision. These claims are ludicrous, both scientifically and legally. And now, finally, the CRC can and will take this matter to federal court to challenge the legality of this highly dubious decision by the Obama Administration.
Rescheduling is an administrative process, and no one can challenge the process in the courts until it is complete. This is one reason why the DEA hesitated to issue their final report on the 2002 CRC petition. The agency was forced to take final action when the CRC filed suit in federal court on May 23, arguing that the DEA had taken an unreasonable time to act. Rather than attempt to respond to the CRC’s lawsuit, the DEA issued their formal rejection of the 2002 petition.
Americans for Safe Access has played a key role in this legal challenge to marijuana’s scheduling under the CSA, as have Patients Out of Time and California NORML – all members of the Coalition for Rescheduling Cannabis.
Under the provisions of the CSA our appeal of the DEA’s decision goes directly to the US Court of Appeals. However, the Court will hear arguments in this appeal about issues of law rather than issues of fact. The legal questions concern the basis for the DEA’s determination that marijuana has the highest abuse potential and no accepted medical use.
There are several obvious legal issues to decide. First of all, only drugs with the highest abuse potential can be placed in Schedule I. Another legal issue concerns whether or not the DEA has properly evaluated the issue of medical use. Does the law allow the DEA to decide if it will accept marijuana’s medical use, or does it require the DEA to evaluate whether marijuana’s medical use has been accepted in the United States?
On the abuse issue the DEA argues that marijuana’s extensive use in the United States is evidence that it has the high potential for abuse required to keep in Schedule I, the most restrictive schedule in the CSA. Yet there is scientific consensus that marijuana has a much lower potential for abuse than drugs such as heroin, cocaine, and methamphetamine.
On the medical use issue, the DEA argues that the Food and Drug Administration has not approved the drug for medical use and that there are neither convincing scientific studies establishing its medical properties nor scientific consensus on its medical benefits. Yet to date 16 states and the District of Columbia have recognized marijuana’s medical use and there is considerable scientific research confirming the medical benefits of cannabinoids, the unique chemicals responsible for marijuana’s characteristic effects.
Another important legal issue here involves the instructions Congress provided for the government to follow in making these specific determinations under the CSA. These are found in the legislative history of the CSA. One of the factors the DEA must consider in their determination of the scheduling of a controlled substance is the scope, duration, and significance of abuse of the substance. According the legislative history of the CSA, as part of their consideration of this aspect of their decision, the DEA “should consider the economics of regulation and enforcement attendant to such a decision. In addition, [the agency] should be aware of the social significance and impact of such a decision upon those people . . . that would be affected by it.” In making their determination that marijuana should remain in Schedule I, the DEA has made no effort to consider these important aspects of the issue.
I originally began this challenge to marijuana’s status under the CSA in 1995. Actually, the key development occurred in 1988, when scientists led by Allyn Howlett discovered the cannabinoid receptor system. This historic development finally explained how marijuana caused its characteristic effects on the human body. Before this discovery, no one knew how marijuana produced its medical and other effects. Since this discovery the bulk of scientific research shifted from trying to prove the drug was harmful to investigating how it could be used to produce medical benefits. I realized in 1994 that the new studies emerging from the scientific community provided just the evidence that was needed to fulfill the requirements for changing marijuana’s status under federal law. The CSA requires an explanation of the pharmacology of a drug and other scientific knowledge in order to make it available for medical use; it also requires a scientific comparison of the abuse potential in order to decide its proper placement in the CSA. Because of the new research emerging in the 1990s it was clear a new and rigorous argument could be made on behalf of medical cannabis users.
My original rescheduling petition was filed in 1995, and argued that marijuana did not have sufficient abuse potential to be a schedule I drug. The DEA formally rejected this petition in 2001. I failed to subject this decision to judicial review in 2001 when the US Court of Appeals ruled that I did not have standing to bring the case to court. They ruled that because I was not directly affected by DEA’s decision I did not qualify as a plaintiff. I was not a medical cannabis patient. US Law only allows people directly affected by government’s actions to challenge them in the Courts. Consequently I organized the Coalition for Rescheduling Cannabis, updated the review of scientific literature, and with the CRC, filed a new petition in 2002. This is the petition at issue today, and with the help of Americans for Safe Access, Patients Out of Time, and the other organizations and patients in the CRC, this matter will finally be heard by the US Court of Appeals.
The rejection of the 2002 petition has received extensive press coverage, and a great deal of criticism. But again, even with the long history of this action, this really is the beginning of the real struggle in which the DEA must defend its action in federal court.
Jon Gettman is a long time contributor to HIGH TIMES. A former National Director of NORML, Jon has a Ph.D. in public policy and regional economic development and consults with attorneys, advocates, and non-profits on cannabis related research and public policy issues. On October 8, 2002, along with a coalition of organizations, he filed a new petition to have cannabis rescheduled under federal law. This column will track that petition's progress.