Bid to Reschedule Pot Denied by Federal Court

January 22, 2013

Jordan Smith, Austin Chronicle

More than a decade after the Coalition to Reschedule Cannabis first petitioned the U.S. Drug Enforcement Administration to reschedule marijuana for medicinal purposes, the U.S. Circuit Court for the District of Columbia ruled Jan. 22 that the DEA was right to refuse to do so.
At issue is whether marijuana should be reclassified from a Schedule I drug under the Controlled Substances Act to a less restrictive classification on Schedule III, IV, or V.
Schedule I is the most restrictive of all drug classifications and carries with it the burden that the drug in question has been deemed to have no "currently accepted medical use." That determination is arrived at via a five-part test, including a determination of whether there are "adequate and well-controlled" scientific studies proving the drug's efficacy. And that is the sticking point for pot, according to the court's Tuesday ruling.

As the number of states legalizing marijuana for medicinal uses continued to increase – there are now 18 states, and D.C., that have legalized medi-pot – in 2002 the Coalition to Reschedule Cannabis (made up of a group of activist organizations, including Americans for Safe Access, NORML, Patients Out of Time, and the Drug Policy Forum of Texas) asked that the DEA consider moving the drug to a less restrictive schedule. That petition went unanswered until July 2011 when the DEA denied the request. That in turn prompted the Coalition members and several named individuals, notably disabled military veteran Michael Krawitz, to file suit in the D.C. Court, arguing that the DEA's denial was arbitrary and capricious. Indeed, the ongoing denial directly injures Krawitz, they argue, who must pay out-of-pocket for medical cannabis care in Oregon because the VA abides by the CSA and may not refer patients for drugs deemed to have no medicinal use.

The D.C. Circuit ruled that the DEA's decision was not arbitrary and capricious. "On the merits, the question before the court is not whether marijuana could have some medical benefits," Judge Harry Edwards wrote for the majority of the court's three-judge panel. "Rather, the limited question that we address is whether the DEA's decision declining to initiate proceedings to reschedule marijuana under the CSA was arbitrary and capricious. These questions are not coterminous." Under a standard that gives deference to the DEA's determination, the court wrote, the agency's decision to deny rescheduling stands.

At the case's core is the issue of whether there have been adequate and well-controlled studies of pot's medicinal efficacy. The DEA argues that there have not. (To be clear, the DEA submitted the rescheduling petition to the Department of Health and Human Services to determine whether pot should be rescheduled; the DHHS review, however, is done via a five-prong test defined by the DEA.) Supporters of rescheduling the drug counter that there have been numerous studies that support the use of pot as medicine – more than 200 submitted as part of the lawsuit – and that if there aren't enough to satisfy the DEA that is entirely the DEA's fault.

The studies referred to in the Coalition lawsuit are all peer-reviewed, though most of them have been conducted outside the U.S. because pot in the U.S. is so tightly regulated. That makes it difficult, at best, for U.S. researchers to get access to government-approved, research-grade pot for use in the kinds of studies that may in the end be CSA-scheduling game-changers. In other words, the DEA has set up a catch-22 that would keep pot classified as a Schedule I drug in perpetuity. (For a taste of this particular brand of madness, consider the plight of Dr. Lyle Craker at the University of Massachusetts, who has been on a go-round with the DEA over this very issue for years.)

More to the point in the current conflict, says Kris Hermes of Americans for Safe Access, is that the government keeps moving the line as to what it considers an adequate and well-controlled study. Apparently hundreds of peer-reviewed studies no longer fit that particular bill. The DEA now interprets its "studies" standard to refer to the kind of larger-scale clinical investigative trials required by the Food and Drug Administration in an application for a new drug. And according to the Court panel, that is fine: "Contrary to what Petitioners suggest, something more than 'peer-reviewed' studies is required to satisfy the DEA's standard, and for good reason," Edwards wrote.

Hermes said the Coalition will ask for en banc review of the panel's decision and, if that fails, may appeal to the U.S. Supreme Court. Meanwhile, ASA will also continue to pursue legislative change, he said. "We're not under any illusion that this is going to be easy," Hermes said, "but we still intend to apply pressure to the federal government to do the right thing and treat this as the public health issue that it is."

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