Two essential cannabis law questions for the next Attorney General

Sessions’ comment is a total non sequitur, a decoy. The AG is fully-empowered to take action to review the status of cannabis under federal law. Put the questions to him.

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Senator Sessions’ comment that, I paraphrase (while assuming he was quoted correctly), if people want cannabis legal then they should get Congress to change the law perplexes me. Congress created a  mechanism within the Controlled Substances Act for changing the way federal law treats cannabis that is within the discretion of the Attorney General: holding an evidentiary hearing before a DEA Administrative Law Judge on the proper classification of cannabis under federal law.

There was an evidentiary hearing in 1988. (It took sixteen years of litigation to get to that point.)  The Drug Enforcement Administration has refused to hold another hearing since then. However, the DEA Administrator works for the Attorney General and presumably if the Attorney General thinks it’s a good idea to hold a hearing the DEA Administrator will make it happen.

Here is question 1: will the next AG hold a long-refused evidentiary hearing on the proper classification of cannabis under federal law and if not why not? Perhaps if the Attorney General thinks that Congress should make the decision whether to change the law he could assist Congress in its evaluations by holding an evidentiary hearing. Let’s get the evidence out into the open, no?

On to question 2.

In the alternative, the AG should direct the DEA to change its regulations about whether to hold a hearing

If the spirit is not moving the AG to hold that hearing, then the next level down is to pose the essential cannabis law question: “what degree of medical use, medical opinion and/or patient opinion should be deemed a ‘currently accepted medical use in treatment in the United States’ that  would justify a hearing”?

This question is important. In addition to the DEA deciding on its own to hold a hearing, ordinary citizens can also ask for an evidentiary hearing. That’s what is called a “rescheduling petition” – the type of petition the DEA has been denying since 1988, as discussed above. (I discussed at length the DEA’s legal theory for maintaining permanent cannabis prohibition after it denied the Americans for Safe Access petition in 2011 and after it denied the petitions by Rhode Island, Washington State and Registered Nurse Bryan Krumm this past August.) It has consistently refused to hold an evidentiary hearing about whether there is a “currently accepted medical use in treatment in the United States”  on the grounds that…there is no evidence of a currently accepted medical use in treatment in the United States. (How do you present evidence to the DEA if it won’t hold a hearing at which you can present the evidence? Hmm. That’s why I called my initial post on this subject Madmen Rule You.)

The DEA reaches this conclusion by requiring the results of the same type of study as the last phase of an FDA clinical trial before it will find that there is evidence of medical use- even though there is federal appellate caselaw holding that that standard is too restrictive. (Again, once the DEA sees evidence of a medical use in treatment in the US meeting that impossibly narrow standard, then it will hold a hearing as to whether there is a medical use in treatment in the US. You get the logic, right?)

However, the DEA could always just change its test. There is nothing in the Controlled Substances Act requiring a petitioner to show medical use before getting a hearing. Requiring the results of an FDA-style clinical trial is something the DEA invented and presumably can un-invent so that outside petitioners (if the AG doesn’t want to do it) can stand a chance of getting the DEA to hold a hearing.

If so, then here is question 2: will the AG review the DEA’s test for “currently accepted medical use in treatment in the US and determine whether it is anything than a for keeping cannabis prohibited forever – one that is not consistent with the Controlled Substances Act – and if not why not?

Sessions’ comment is a total non sequitur, a decoy. The AG is fully-empowered to take action to review the status of cannabis under federal law. Put the questions to him.

 

Author: Noah Potter Law

I'm a commercial litigator based in New York providing provide legal research, writing and strategic analysis as an independent contractor to other attorneys. I have unusually long experience with drug law and policy generally and with cannabis in particular dating back to my time as an undergraduate political science student at Columbia.

2 thoughts on “Two essential cannabis law questions for the next Attorney General”

  1. Marijuana Business Daily produced an executive report detailing 5 scenarios that may unfold under Trump’s Presidency. Their most likely scenario is that Trump’s administration does nothing and just maintains the status quo of the Obama administration. Session’s misleading statement interpreted in this light might mean that he does not intend to take the lead on this. He has said he is against legalization, but he is also a constitutionalist who puts state’s rights above those of the Feds. Let’s hope he puts the states above his own personal opinion.

    We need marijuana to be regulated like alcohol or nutritional supplements. Any FDA involvement will lead to an eventual takeover of the industry by Big Pharma and/or Big Tobacco. They are the only ones who have the staff and resources in place to comply with the FDA rules. Wouldn’t it be great if the Feds simply removed marijuana from Schedule 1 and didn’t put it anywhere else, leaving regulation to the states?

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    1. I don’t object to reclassifying cannabis to a status analogous to alcohol/tobacco; I consider that approach the most appropriate. What I’m saying is that unless Congress passes legislation legalizing cannabis (I believe Jared Polis introduced such a bill) an evidentiary hearing is another approach to challenging the status quo. I don’t propose moving cannabis to Schedule II or III; I believe that the goal should be to make the case that cannabis should move out of the Schedules entirely, as you said, and the AG has the ability to do so. I believe that such a hearing would provide an opportunity to explain the federal government’s criteria for drug classification and open up a discussion as to what should replace it.

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