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Earlier this week, the U.S. Supreme Court refused to review an appeal of marijuana's federal classification as a dangerous drug with no medical value. While this came as no surprise to advocates, including the plaintiff Americans for Safe Access (ASA), the federal government continues to deny millions of Americans legal access to a valuable medicine for political reasons.
ASA, as part of the Coalition for Rescheduling Cannabis (CRC), filed a petition in 2002 to reclassify marijuana for medical use. After 9 years of hearing nothing from the federal government and faced with a lawsuit for unreasonable delay, the Drug Enforcement Administration (DEA) denied the petition based on a purported lack of evidence of medical efficacy. The more than 200 peer-reviewed, double-blind, placebo-controlled studies were apparently not enough for the Obama Administration.
The silver lining in the government's refusal to recognize marijuana's medical value was that for the first time in 20 years, the issue of marijuana's classification was again brought into federal court. The D.C. Circuit, where ASA v. DEA was heard, granted the plaintiffs standing to bring such an appeal but unfortunately denied the case on its merits. In so doing, the D.C. Circuit established a brand new precedent, requiring petitioners to obtain evidence from Phase II and III clinical trials to prove medical efficacy, a ruling that conflicts with the First Circuit in Grinspoon v. DEA, 828 F.2d 881 (1st Cir. 1987). The First Circuit held that 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 Court also held that for some drugs (like smoked marijuana):
[T]here is no economic or other incentive to seek interstate marketing approval...because [they] cannot be patented and exploited commercially.
This week's refusal by the U.S. Supreme Court to rule on marijuana's federal reclassification comes less than three months after a writ of certiorari was filed with the High Court seeking review. The appeal was not only based on a clear conflict with Grinspoon, but also a failure by the D.C. Circuit to review marijuana's abuse potential, which is currently considered as harmful as heroin and PCP and even more harmful than methamphetamine, cocaine and opium.
Despite the closure of this chapter in the history of rescheduling cannabis, the struggle is far from over. There are a number of ways the federal government can take action to reclassify this important medicine. HR 689, the States' Medical Marijuana Prevention Act, which would move marijuana out of Schedule I, was introduced earlier this year and is currently pending in Congress. The Justice Department, which recently issued its third directive to scale back on federal marijuana enforcement, could at any time reclassify cannabis for medical use. Even President Obama could issue an Executive Order to reschedule marijuana. But, it's going to require the federal government to recognize the mountain of scientific evidence and align with the overwhelming popular support for medical marijuana to make it happen.
In the meantime, the governors of four states -- Colorado, Rhode Island, Vermont and Washington -- have filed their own petitions to reclassify marijuana for medical use. However it happens, though, hundreds of thousands of patients will be on the front lines in the effort to bring sanity to the country's public health policy. We're not going away.