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January 22, 2013

DC Circuit rejects efforts to force DEA to consider "rescheduling" of marijuana

As reported in this AP article, the DC Circuit earlier today "rejected a petition to reclassify marijuana from its current federal status as a dangerous drug with no accepted medical use." Here is more about the ruling and its context:

The appeals court panel denied the bid from three medical marijuana groups, including Americans for Safe Access, and several individuals. In 2011, the Drug Enforcement Administration had rejected a petition by medical marijuana advocates to change the classification.

In his majority opinion, Judge Harry T. Edwards wrote that the question wasn't whether marijuana could have some medical benefits, but rather whether the DEA's decision was "arbitrary and capricious." The court concluded that the agency action survived a review under that standard....

In the federal system, marijuana is classified as a controlled substance, categorized as having a high potential for abuse and no currently accepted medical use, together with drugs like heroin, LSD and ecstasy.

The court noted that the DEA denied the petition to change the classification after the Department of Health and Human Services gave the DEA its evaluation that marijuana lacks a currently accepted medical use in the United States. DEA regulations define "currently accepted medical use" to require, among other things, "adequate and well-controlled studies proving efficacy."

Americans for Safe Access cited more than 200 peer-reviewed published studies demonstrating marijuana's efficacy for various medical uses, including a 1999 study by the respected Institute of Medicine, a government adviser on health issues. "The IOM report does indeed suggest that marijuana might have medical benefits," the court conceded. "However, the DEA fairly construed this report as calling for 'more and better studies to determine potential medical applications of marijuana' and not as sufficient proof of medical efficacy itself."

The lengthy opinion in Americans for Safe Access v. DEA, No. 11-1265 (D.C. Cir. Jan. 22, 2013), is available at this link. There is a dissent from the panel ruling, though it is focused only on the question of standing and argues that the panel majority ought not have reached the merits.   I presume there may be an effort to bring this issue to an en banc court or even to the Supreme Court, though upon first impression I am disinclined to predict any change in the outcome in this matter.

January 22, 2013 at 02:04 PM | Permalink


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Even if the court can't compel the DEA to reschedule, the DEA could still do it on its own. I think an Executive Order or Obama telling the DEA to make it happen?
I don't agree with the feds prosecuting distributors in states that have legalized it, but I understand they want to preserve the primacy of federal law. The refusal to reschedule seems worse because it denies a very legitimate, evidence-based request to experiment.

Posted by: Paul | Jan 23, 2013 8:52:22 PM

Paul --

People don't want to reschedule in order to experiment. They want to reschedule in order to get high.

Posted by: Bill Otis | Jan 24, 2013 1:53:23 PM

Law enforcement needs to re-direct its focus on crime...to those that are REAL crimes.

I was in Federal Prison for 5 years for a marijuana offense. No, it was not for simple possession. I was arrested aboard a Lockheed PV2 in Marianna, Florida...charged and convicted for conspiracy to import and distribute 12,000 pounds of marijuana.

As those 5 years rolled by, what I did see were armed bank robbers, coming and going...while I still sat there for marijuana. Most of the bank robbers only spent 17 to 24 months. But, I and my fellow 'drug offenders,'...we stayed for YEARS.

I wrote about the escapades that led to my incarceration.
I admit, I had a great time.
No one was injured, no one was killed, firearms were not involved...there were no victims.

We were Americans...doing what Americans do best...living free.

My book: Shoulda Robbed a Bank
I think you may enjoy it...

Posted by: Hugh Yonn | Jan 25, 2013 9:56:40 AM

I am not a doctor. I can only speak from personal experience.

Several years ago, I had surgery on my right shoulder. Pain medication was prescribed…”take one capsule every 4 hours.”

I took one capsule.
I was down for over 20 hours. When I came to, I felt like I had been hit by a truck. The next time I felt discomfort, I smoked a small amount of marijuana …pain gone, no after effect.

I threw the pills out.

That was the only prescription medication I have taken in the past 30 years. That one pill made me feel worse, both physically and mentally than anything I think I have ever encountered.

Posted by: Hugh Yonn | Jan 25, 2013 9:58:13 AM

Hugh Yonn --

I am not a doctor either, but I know that there is a huge variety of legal pain medication. Some of it works well with individual patients, some of it doesn't. If one legal medication doesn't, there's no harm in asking the doctor (or a different doctor) for a different one.

The fact remains that, although there are exceptions (as there are ALWAYS exceptions), the vast amount of pot smoking that gets done is to get high

Posted by: Bill Otis | Jan 26, 2013 12:13:46 PM

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