Pot activists sue feds over 'false' data about drug
February 21, 2007
Josh Richman, Oakland TribuneMedical marijuana advocates have sued the federal Department of Health and Human Services, accusing it of lying to the nation about the drug's lack of accepted medical use despite scientific studies showing its efficacy. The lawsuit, filed Wednesday in federal court in Oakland, comes a week after the release of a controlled, clinical University of California, San Francisco, study finding that HIV patients who smoked marijuana found relief from chronic foot pain.
"We are asking the courts to weigh in on the science ... and force the government to stop making false statements about medical cannabis," said Steph Sherer, executive director of Americans for Safe Access. ASA attorney Joe Elford said the lawsuit is brought under the federal Administrative Procedure Act, which provides for judicial review and reversal of any agency action found to be arbitrary and capricious.
ASA in October 2004 had petitioned the Department of Health and Human Services and its subordinate Food and Drug Administration under the Data Quality Act, a 2000 law requiring information circulated by federal agencies to be fair, objective and meet certain quality guidelines. That law lets citizens challenge government information believed to be inaccurate or based on bad data. ASA's petition claimed the government has ignored scientific studies and medical consensus on marijuana's efficacy as medicine.
HHS denied the petition in 2005 and denied an appeal in July 2006. Those decisions are arbitrary and capricious, Elford said, and Americans for Safe Access has been biding its time ever since to sue.
"We aimed to file this lawsuit at a time when the country was talking about the science," Sherer said, but her group doesn't think it even needs the newly released UCSF study to bolster its case; it believed the science was solid enough when it petitioned HHS in 2004.
"The federal government has had enough information in front of it for years to break the gridlock on this issue," she said.
Sherer is one of four medical marijuana users used as examples in the lawsuit. She suffered a neck injury in 2000 and later developed kidney problems from the ibuprofen and other painkillers she'd been prescribed. The government told her marijuana had no medical use, so she was delayed in seeking a doctor's advice to the contrary and finding relief, she says.
California voters approved medical use of marijuana by passing Proposition 215 in 1996, but federal law still bans the drug's cultivation, possession and use. Despite years of lobbying by advocates, it remains on the nation's list of most restricted drugs, along with substances such as heroin and LSD, without accepted medical use. Despite a 1999 federal Institute of Medicine study urging more research, studies like UCSF's still face enormous obstacles and so remain rare.
Medical marijuana patients Angel Raich of Oakland and Diane Monson of Oroville sued federal law enforcement officials in 2002, claiming the federal government lacks authority to prosecute California's patients and providers. The U.S. Supreme Court in June 2005 ruled 6-3 to uphold federal prosecutions, finding that even marijuana grown in backyards for personal medical use can affect or contribute to the illegal interstate marijuana market and so is within Congress' constitutional reach.
But the court, in a footnote, did "acknowledge that evidence proffered by respondents in this case regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed" among the most restricted drugs.