Orrick Stokes DEA Over Alleged Marijuana Misstatements

By Marcia Coyle for The National Law Journal

A team from Orrick, Herrington & Sutcliffe, representing the medical marijuana advocate Americans for Safe Access, isn’t holding its breath for federal drug enforcement officials to erase their alleged misstatements about the health risks of cannabis.

The U.S. Drug Enforcement Administration has not responded to a petition from Americans for Safe Access that sought to correct allegedly false and misleading information from the DEA’s website. Orrick filed the petition in late last year.

The next step? A possible lawsuit, said Orrick’s Vickie Feeman, a partner in the firm’s Silicon Valley office who is leading the pro bono effort for the pro-marijuana advocate.

The petition from the nonprofit Americans for Safe Access outlined 25 alleged violations by the agency of the federal Information Quality Act, known also as the Data Quality Act. That law requires federal agencies to draft guidelines that ensure the "quality, objectivity, utility and integrity of information" that they distribute and to provide a mechanism to correct any misinformation.

Orrick’s effort comes at a particularly sensitive time as medical marijuana advocates work with members of Congress to keep the so-called “Rohrabacher amendment” in a fiscal year 2017 continuing budget resolution and in the fiscal year 2018 budget. That amendment prohibits the U.S. Department of Justice from using any appropriated funds to prosecute individuals who are complying with their state's medical marijuana laws. The amendment remains in effect through April 28.

One complicating factor is U.S. Attorney General Jeff Sessions and his strong position against the legalization of marijuana. In a speech this month to law enforcement officers, Sessions said: “I am astonished to hear people suggest that we can solve our heroin crisis by legalizing marijuana—so people can trade one life-wrecking dependency for another that’s only slightly less awful. Our nation needs to say clearly once again that using drugs will destroy your life.”

A representative from the DEA didn’t immediately respond to a request for comment.

The National Law Journal on Thursday spoke with Feeman about the Americans for Safe Access petition. What follows are excerpts, edited for clarity and length, from that conversation.

NLJ: You’re a patent and trademark litigator—how did you get involved in the medical marijuana issue?

Feeman: This is a pro bono matter. We're representing Americans for Safe Access. I actually have a personal interest. I have a brother who had a severe stroke and lives in Ohio. Ohio had no law but recently passed a medical marijuana law that apparently will take three years to get procedures in place. He is very interested. He feels the opiates that the doctor prescribes for pain don't do a lot. He had a very severe stroke and has a lot of pain. That triggered my interest.

NLJ: What is the status of the Americans for Safe Access petition, and are there next steps?

Feeman: They have failed to do any formal response. We sent a letter in February (70 days after the filing of the petition). They said they have the [petition] and are still reviewing it.

To some extent, we've given them more time because of the change in administrations. Regardless of what position the new administration is taking, they're still obligated to make the changes. Our client would rather take this to the courts after the DEA has actually issued a response, but on the other hand, we're going to give them a certain amount of time.

NLJ: Has the DEA done anything about the medical marijuana information on its website?

Feeman: There were basically two documents we pointed to containing most of the statements. A majority of the statements are in one document (The Dangers and Consequences of Marijuana Abuse). They took links down to that document but there are still links in the other document. They may have intended to address three-quarters of the statements, but in one way, 100 percent of it is still up there. But we believe they made an effort but it's not even clear that was in response to our letter.

NLJ: Is Orrick involved in the medical marijuana issue in other ways?

Feeman: Some people in the firm had already been doing work with Americans for Safe Access—helping with manuals to advise patients on rules in laws in the different states. That is very confusing for people. I was just barely involved. I don’t believe at this point we have any involvement in legislation. The only project we have been requested to assist with was helping to write these instruction manuals for people, and also fielding a hotline that people could call and get information about rules in different states.

NLJ: You mentioned a willingness to go to court over the DEA petition.

Feeman: We will take it to the courts if they simply refuse to issue any kind of response, but we don't have a timeline on this.