By John Gettman for High Times
The proper scheduling of marijuana under the provisions of the federal Controlled Substances Act (CSA) is under review by the US Court of Appeals for the District of Columbia, and the Court began hearing oral arguments on this issue October 16, 2012.
This review is in response to an administrative petition filed in 2002 by the Coalition for Rescheduling Cannabis (CRC), a collection of advocacy groups and medical cannabis patients including Americans for Safe Access, Patients Out of Time, NORML, HIGH TIMES, and patient advocacy groups in California, New Mexico, and Texas. HIGH TIMES has provided legal counsel and additional support for this project since my original rescheduling petition was filed in 1995.
The petition sought a change in marijuana regulatory status under the CSA and argued that under the criteria of the CSA marijuana should be reclassified and placed in a less restrictive schedule in the regulatory scheme established by the statute.
After several years of delay and facing the prospect of a federal court order to take action, the Drug Enforcement Administration (DEA) formerly rejected the petition in July of 2011. The current court action consists of a judicial review of the DEA’s rejection of the petition. The history of this administrative petition is summarized below in Table 1.
Rescheduling marijuana is a complex subject with a long history and profound relevance to the medical use of marijuana in the United States. Despite the technical complexity of this issue, its relevance is fairly straightforward. Rescheduling has both practical and instructive significance with respect to federal policy and law regarding marijuana.
First, scheduling under the CSA determines specific regulatory requirements regarding the manufacture and distribution of listed substances for both research and commercial purposes. Rescheduling marijuana would move it from the most restrictive schedule under law to a less restrictive schedule, which would expedite additional research and make it easier for states that have authorized medical marijuana use to comply with federal law.
Second, rescheduling would acknowledge the scientific accomplishments that have taken place since marijuana was originally scheduled in 1970 and make marijuana’s legal status under federal law consistent with contemporary scientific knowledge about the drug. This would require the federal government to acknowledge that marijuana is not similar, scientifically, to drugs like heroin, cocaine, and methamphetamine in terms of safety, abuse potential, and dependence liability.
Most important, rescheduling requires the federal government to recognize that marijuana has an accepted medical use in the United States.
The nation’s drug laws were overhauled in the late 1960s, resulting in the passage of the Controlled Substances Act in 1970. One of the introductory provisions of this Act was a Congressional Finding that “many of the drugs included within this subchapter have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people. The purpose of the CSA was to balance the need to produce effective controls on the manufacture and distribution of substances that have a potential for abuse in order to reduce their availability for illegal sales and use. The goal was to create a closed system of manufacture and distribution for these substances in order to prevent non-medical access.
The result was a system of five schedules with varying degrees of regulatory scrutiny. Schedule I provided the strictest regulatory provisions, with access severely limited to research under the strictest conditions. Schedule V has the least restrictive requirements. Placement in the schedules is determined by a set of scientific criteria. The scientific branch of the federal government (at the time, the Department of Health, Education, and Welfare, now the Department of Health and Human Services) would make scientific determinations relevant to the scheduling of a drug or substance, and the Drug Enforcement Administration would make the final decision about scheduling and enforce the regulatory provisions.
There are two sets of criteria relevant to scheduling. First, in order to determine a drug’s placement in the schedules the following topics would be assessed: accepted medical use, safety for use, abuse potential, and dependence liability.
Schedule I drugs are characterized by a high potential for abuse and a lack of accepted medical use. Schedule II drugs have a high potential for abuse but also have an accepted medical use. The remaining schedules all acknowledge medical use, but varying degrees of lower dependency liabilities.
The following criteria would be used to assess the topics used to determine placement in the five schedules:
The key question, thus, is where does marijuana belong in this scheduling scheme? The rescheduling petition filed by the CRC argues that marijuana does not belong in Schedule I because it a) has an accepted medical use in the United States and b) does not have the high potential for abuse required for this category. Interestingly enough, this was also the opinion advanced by Nixon Administration officials when the CSA was being created by Congress.
According the legislative history, “The extent to which marijuana should be controlled is a subject upon which opinions diverge widely … During the hearings, Dr. Stanley F. Yolles, who was the Director of the National Institute of Mental Health, submitted a chart of fable and fact concerning marijuana … In the bill as recommended by the administration and as reported to committee, marihuana [sic] is listed under schedule I, as subject to the most stringent controls under the bill, except that the criminal penalties applicable to marijuana offenses are those for offenses involving non-narcotic controlled substances.
“The committee requested recommendations from the Department of Health, Education, and Welfare concerning the appropriate location of marijuana in the schedules of the bill … and by letter of August 14th, 1970” The Assistant Secretary for Health and Scientific Affairs recommended “that marijuana be retained within Schedule I at least until after the completion of certain studies now underway.”
This important letter from Roger Egeberg of the Department of Health Education and Welfare to Congress regarding the scheduling of cannabis is on pages 4629 – 30. This August 14, 1970 letter states:
“Some question has been raised whether the use of the plant itself produces ‘severe psychological or physical dependence’ as required by a schedule I or even schedule II criterion. Since there is still a considerable void in our knowledge of the plant and effects of the active drug contained in it, our recommendation is that marihuana be retained in schedule I at least until the completion of certain studies now underway to resolve this issue. If those studies make it appropriate for the Attorney General to change the placement of marihuana to a different schedule, he may do so in accordance with the authority provided under section 201 of the bill.”
That was 1970. There have been numerous studies completed since then, but every administration since has declined to avail itself of the ever-increasing scientific record regarding marijuana’s incompatibility with the legal requirements of its continuing Schedule I status.
There have been two prior efforts to have marijuana rescheduled. The first rescheduling petition was filed by NORML in 1972. The administration refused to process it according to the provisions of the CSA, and was subject to orders from the US Court of Appeals in 1974, 1977, and 1980 to fulfill the procedural requirements of the statute. After denial of the petition and a recommendation from an Administrative Law Judge to reconsider, the DEA’s decision not to reschedule was upheld under judicial review by the Court of Appeals in 1994.
I filed a second rescheduling petition in 1995. It was also denied by the DEA, and this decision was upheld by the Court of Appeals in 2002 on the basis that I was not a medical marijuana patient and did not have standing to take the case to the federal courts. In response to that decision, I organized the CRC and submitted a new petition to the DEA in October, 2002.
One of the key scientific developments since marijuana’s original placement in Schedule I by Congress was the discovery of the cannabinoid receptor system in 1988. In effect, scientists discovered how marijuana produces its effects on the human body, and this discovery revolutionized research on marijuana.
Prior to this discovery research sought to explain how marijuana affected the body and to confirm concerns that it was a harmful and dangerous drug. Subsequent research, however, has established the opposite – that marijuana is a relatively safe drug with tremendous medical potential. This discovery has produced considerable scientific research in the last two decades – research that fulfills the requirements for marijuana’s rescheduling.
Marijuana does not have a high potential for abuse, it is safe for use under medical supervision, and has accepted medical use in the United States. Indeed, 17 states have recognized marijuana’s medical use, creating conflicts between state and federal law throughout the country. The CRC petition summarized the scientific record in support of rescheduling as of 2001. That record has continued to expand since then and was largely ignored by the HHS and DEA during their review of the CRC petition over the past decade.
The Court has several legal issues to address. These include the following key questions:
Can a drug without a high potential for abuse remain in Schedule I?
Does recognition by 17 states qualify as accepted medical use in the United States?
And, as significantly, can the administration choose to ignore the spirit and letter of the law when it conflicts with their own policy preference?
Since its passage in 1970 every administration has resisted efforts to be held accountable to the provisions of the Controlled Substance Act, insisting on subjecting marijuana to a policy of prohibition when other, more practicable, less costly, more effective, and less restrictive options are required by law.
Jon Gettman is a long time contributor to HIGH TIMES. A former National Director of NORML, Jon has a Ph.D. in public policy and regional economic development and consults with attorneys, advocates, and non-profits on cannabis related research and public policy issues. On October 8, 2002, along with a coalition of organizations, he filed a new petition to have cannabis rescheduled under federal law.