Advocates Seek Supreme Court Review of Marijuana Scheduling

July 14, 2013

Phillip Smith, Drug War Chronicle

The people behind a decade-long effort to reschedule marijuana out of the Controlled Substance Act's (CSA) Schedule I have now complied with a vow they made when the DEA's decision to reject the effort was upheld by a federal appeals court in Washington. On Monday, Americans for Safe Access (ASA) filed a writ of certiorari asking the US Supreme Court to review the case.

Filing the writ does not mean the Supreme Court will decide to take up the case. The high court receives thousands of such appeals each session, but actually decides to hear only a tiny percentage of them. This writ, however, has two things going for it: It is on the paid certiorari docket (most are not) and it argues that the Supreme Court needs to resolve conflicts between federal appellate courts.

With the appeal, petitioners are challenging what they call an unreasonable and unprecedented standard for proof of medical efficacy of marijuana set by the District of Columbia Circuit Court of Appeals, which upheld the DEA's denial of the petition.

"To deny that sufficient evidence is lacking on the medical efficacy of marijuana is to ignore a mountain of well-documented studies that conclude otherwise," said ASA chief counsel Joe Elford, who argued the appeal before the DC Circuit in October of last year. "The Court has unreasonably raised the bar for what qualifies as an 'adequate and well-controlled' study, thereby continuing the government's game of 'Gotcha.'"

In 2002, the Coalition for Rescheduling Cannabis, made up of several individuals and organizations including ASA, filed a petition to reclassify marijuana for medical use. That petition was denied by the DEA in July 2011. The appeal to the DC Circuit was the first time in nearly 20 years that a federal court has reviewed the issue of whether adequate scientific evidence exists to reclassify marijuana. Before the January ruling, the DC Circuit had never granted plaintiffs the right to sue when seeking reclassification of marijuana.

But while the DC Circuit granted plaintiffs standing, it denied their appeal on the merits in a 2-1 ruling, by setting a new, virtually-impossible to meet standard for assessing medical efficacy. Although ASA cited more than 200 peer-reviewed studies in its appeal, the DC Circuit held that plaintiffs must produce evidence from Phase II and Phase III clinical trials -- usually reserved for companies trying to bring a new drug to market -- in order to show marijuana's medical efficacy.

"The Obama Administration's legal efforts are keeping marijuana out of reach for millions of qualified patients who would benefit from its use," continued Elford. "It's long past time for the federal government to change our country's harmful policy on medical marijuana, and if it must be compelled to do so by the courts then so be it."

Since the rescheduling petition was filed in 2002, an even greater number of scientific studies have been conducted showing the medical efficacy of marijuana, and national polls have consistently ranked popular support for medical marijuana at around 80%. Medical marijuana continues to be approved either by voters or legislators in more states each year.

ASA argues that the medical efficacy standard set by the DC Circuit conflicts with a 1987 ruling in the First Circuit in Grinspoon v. DEA, 828 F.2d 881 (1st Cir. 1987), which held the DEA cannot treat a lack of FDA marketing approval as conclusive evidence that a substance has no "currently accepted medical use in treatment in the United States." The Grinspoon decision also held that for some drugs (like smoked marijuana) "there is no economic or other incentive to seek interstate marketing approval... because [they] cannot be patented and exploited commercially."

Repeated efforts to redress the unwarranted scheduling of marijuana as Schedule I have been underway since 1972. The DEA stonewalled the first petition in a regulatory process that lasted more than 20 years (and which included the Griswold case); it took six years to reject a second petition; and it took a decade before finally rejecting this third rescheduling petition.

A fourth rescheduling petition was filed by the governors of Colorado, Rhode Island, Vermont, and Washington in 2011. The DEA has yet to act on that, but ASA warns that the stringent standard for proving medical efficacy set out by the DC Circuit in conflict with Griswold means that this latest petition could also face an uphill battle.



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