Putting DEA on the defensive

Court case puts marijuana prohibition on the stand

This might be the big one for medical marijuana and marijuana legalization advocates. The U.S. Circuit Court of Appeals in Washington, D.C., has agreed to hear Americans for Safe Access vs. Drug Enforcement Administration, which challenges the federal classification of marijuana as a Schedule I drug. 

The Schedule I classification is one of the biggest arguments against medical marijuana nationwide because Schedule I drugs are defined as having no accepted medical use. Marijuana, heroin, ecstasy, LSD and GHB (the so-called date rape drug) are all classified as Schedule I substances. Marijuana was placed in that classification of the Controlled Substances Act in 1970 on the advice of Assistant Secretary of Health Roger O. Egeberg. In 1972, President Nixon's National Commission on Marihuana and Drug Abuse reported "there is little proven danger of physical or psychological harm from the experimental or intermittent use of the natural preparations of cannabis," but it didn't make any difference. Ignoring the wisdom of his commission, Nixon kept pot on Schedule I and created the War on Drugs to get at political opponents and bolster his stance as the law-and-order guy. 

Now the government is going to have to prove in court that marijuana deserves to be a Schedule I drug. Oral arguments are scheduled to start Oct. 16.

This appeal stems from a 2002 petition by the Coalition for Rescheduling Cannabis — Americans for Safe Access (ASA) is a member of the coalition — to get the Drug Enforcement Agency (DEA) to reschedule marijuana. The DEA dragged its feet until last year when the ASA sued to force the government agency to give an answer. The DEA then denied the petition. That was actually a step forward because the decision opened the door for the ASA to make the DEA prove its position.

"This is a rare opportunity for patients to confront politically motivated decision-making with scientific evidence of marijuana's medical efficacy," ASA attorney Joe Elford wrote in a statement on the ASA website. 

The ASA filed suit in January.

"The ASA has been working on this for more than 10 years," says Brandy Zink, a Michigan spokesperson for the ASA. "There is a mountain of evidence that supports the safety and efficacy of cannabis as medicine."

Indeed, that mountain encompasses thousands of peer-reviewed scientific studies. The results of a study recently published in the Open Neurology Journal by Dr. Igor Grant, director of the Center for Medical Cannabis Research (CMCR) at the University of California San Diego concluded that "Based on evidence currently available, the [federal] Schedule I classification [of cannabis] is not tenable; it is not accurate that cannabis has no medical value, or that information on safety is lacking."

The CMCR study was a 12-year series of FDA-approved clinical trials, the gold standard for these types of inquiries. Many other studies have found indications that marijuana may be useful in treating some cancers, HIV, multiple sclerosis, neuropathic pain and other illnesses. It will be interesting to see what evidence the DEA will have to refute the mountain of evidence contrary to its position.

It may be that the government doesn't even believe its own position — as evidenced by the fact that it holds a 2003 patent on "Cannabinoids as antioxidants and neuroprotectants." Cannabinoids are the active substances in marijuana such as THC and CBD that have effects such as euphoria and appetite enhancement. The patent application (No. 6630507) refers to the "therapeutically effective amount of a cannabinoid," which seems to contradict the DEA Schedule I classification. That's something I'm sure the ASA intends to mention during the legal proceedings. 

The CMCR study did find that cannabis has "some abuse potential," but that it more closely resembled Schedule III drugs. Those drugs are deemed to have less potential for abuse or addiction than Schedule I or II drugs. Codeine, testosterone and Dronabinol (synthetic THC also known as Marinol) are among the Schedule III substances.

"If rescheduling is successful, there are patients in federal court who will gain a medical necessity defense," Zink says. "If marijuana were reclassified on a federal level it would apply equally in all 50 states. The ASA is asserting that the federal government has acted arbitrarily and capriciously in its efforts to deny cannabis to millions of patients throughout the United States. This is about preserving our scientific integrity and to address the urgent needs of millions of patients across our country."

An ASA victory in this case would not make marijuana legal, but it would clear the way for research on therapies utilizing marijuana and open a defense for medical marijuana patients charged with federal drug crimes. Currently anyone charged by the feds for activities that are legal under state law cannot use or even mention their state medical marijuana status. It would also probably open the door for a more rational discussion of the drug war that has cost our nation a trillion dollars and many lives over the past 40 years.

Governors from the states of Washington and Rhode Island petitioned the DEA to reschedule marijuana in November 2011. Colorado and Vermont governors signed on later. In the original petition, the governors wrote that "the vast majority of modern research" has found marijuana useful in treating a variety of diseases. 

No one knows how this will end. The DEA has been whacking away at large California dispensaries in seeming contradiction to President Obama's promise to not prosecute facilities operating within state laws that permit medical marijuana. It almost seems that from a federal point of view it's OK to have a small operation, but once any big money starts flowing they will cut you down.

Here in Michigan, things are looking better for medical marijuana patients, with a recent Courts of Appeals ruling that the city of Wyoming could not ban medical marijuana facilities by claiming they are contrary to federal law. Judges Joel Hoekstra, Douglas Shapiro and William Whitbeck, the Kent County appeals court panel in this case, voted unanimously against Wyoming's medical marijuana ban. They also ruled that municipal law does not trump state law. The city of Wyoming could appeal the decision to the state Supreme Court, although it's not clear if it will. This decision has potential to ripple across the state because a number of municipalities have avoided the issue by declaring moratoriums on medical marijuana facilities. 

This ruling has nothing to do with whether there can be marijuana dispensaries in the state. The definitive answer on dispensaries will come when the state high court rules on People vs. McQueen, involving a Mount Pleasant medical marijuana dispensary. Then we will know if medical marijuana patients can not only have their medicine, but will they be able to buy it somewhere.


Larry Gabriel is a writer, musician and former editor of Metro Times. Send comments to [email protected].

About The Author

Larry Gabriel

Larry Gabriel covers cannabis for Metro Times. He also writes the Detroit Watch in the monthly Michigan Cannabis Industries Report. Larry's chapter "Rebirth of Tribe" in the book Heaven Was Detroit, from jazz to hip-hop and beyond chronicles the involvement of Marcus Belgrave, Wendell Harrison, Harold McKinney,...
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