Group: Fix alleged misstatements on medical pot

April 14, 2009

Bog Egelko, San Francisco Chronicle

A medical marijuana advocacy group and the Obama administration argued Tuesday before a federal appeals court in San Francisco over a private citizen's right to force the government to correct alleged misstatements - in this case, about the therapeutic properties of pot.

Americans for Safe Access filed suit in San Francisco two years ago under the Information Quality Act, a federal law that allows members of the public to "seek and obtain correction" of false or misleading government information that affects them.

The organization said its members include seriously ill people who had been discouraged from using marijuana by the U.S. Department of Health and Human Services' long-standing position that the drug has no medical value. The department declined to respond to the suit, saying the Drug Enforcement Administration was still considering the advocacy group's 2002 request to reconsider the status of marijuana.

On Tuesday, a Justice Department lawyer told the Ninth U.S. Circuit Court of Appeals that the law allowing private citizens to seek correction of government misinformation can't be enforced in court.

Congress created "no judicially enforceable rights" when it passed the Information Quality Act in 2000, said attorney Alisa Klein. She said the law requires only that a federal agency review such requests from members of the public; otherwise, she said, courts would be flooded with demands to second-guess government decisions on countless subjects.

The government's position would make the law meaningless, argued Alan Morrison, the lawyer for Americans for Safe Access. Although some disputes are too subjective for court intervention, he said, others can be measured objectively - for example, "two plus two is four and not five" - and the law gives judges a role in keeping the government on track.

Members of the three-judge panel seemed torn.

"The statute is amazing and troubling," said Judge Marsha Berzon. But she told Klein that the law appears to allow people affected by government misinformation to get it corrected, under court order if necessary.

Federal law classifies marijuana among the most harmful drugs, with no legitimate use, but allows the DEA to ease restrictions based on new scientific evidence. Americans for Safe Access asked the DEA to reclassify marijuana during President George W. Bush's administration, and - after getting no response - asked the Department of Health and Human Services to correct its alleged misstatements under the Information Quality Act.

U.S. District Judge William Alsup of San Francisco dismissed the suit in November 2007, saying the law did not require any action by the department. The advocacy group wants the appeals court to reinstate the case and order the department to respond to its complaint.



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