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Cannabis Caught in a Catch-22

A pot leaf about to be smashed by a gavel.

Joint Opinions

Cannabis Caught in a Catch-22

Cannabis can’t be legalized because it hasn’t been adequately studied.  But cannabis can’t be studied because it isn’t legal.

If the contours of the above logic sound remarkably similar to those of the eponymous military directive featured in Joseph Heller’s masterful satire Catch-22, that’s because… they are.  In fact, the fictional bureaucratic rule which has added a new word to the English lexicon is based on exactly the same logical fallacy as the D.C. Circuit Court of Appeals’ ruling on January 22nd.

In Heller’s version, the odious regulation Catch-22 keeps the hero Yossarian trapped in an active war zone despite all his efforts to prove his insanity – because anyone who would try to escape the army during a war is clearly sane.  This fallacy of circular logic has become emblematic for all sorts of absurd government regulations.

This week’s court ruling may very well top it.  When examining the 40-year history of obstructionism by the DEA, the D.C. Circuit Court of Appeals – a high-ranking court which by law reviews appeals of decisions by Washington’s bureaucratic agencies – adopted the DEA’s argument hook, line, and sinker.  The DEA claimed that it had no duty to reclassify cannabis out of the restrictive Schedule I under the Controlled Substances Act (the federal law which makes pot illegal), because marijuana had not been adequately studied as a medicine.  Americans for Safe Access, the petitioners in the case, responded by referencing over 200 peer-reviewed studies published in medical journals demonstrating the drug’s safe and efficacious action.

But the DEA rebutted that none of those studies mattered; only strenuous so-called “Phase II” and “Phase III” trials, set up according to FDA standards, are authoritative enough to make them change their minds.

That proposition, in itself, is not so illogical.  Phase II and III trials are an important (if costly) step in the long process of making sure that a drug does what it’s supposed to do; they employ double-blind quantitative data analysis across broad populations to determine the exact medical benefit, if any, that a drug may have.  Recent nightmare scenarios (think Fen-Phen) have buttressed the argument that the nation’s drug bureaucracies should take an extra degree of care before approving a drug for widespread medical use.  While reasonable people may disagree about whether treating marijuana this way is fair, it’s at least a rational point of view.The absurdity of the DEA position does not become apparent until examined in a broader bureaucratic context, something the D.C. Circuit Court refused to do.

Completely ignored in the court’s ruling is the fact that it is impossible to satisfy the FDA requirements for Phase II and III trials without first obtaining a large and consistent supply of the drug to be tested – and that the federal government refuses to allow anyone to obtain such a supply.  This is in fact the subject matter of a completely separate lawsuit filed by a researcher at the University of Massachusetts, in order to win the right to conduct good science on medical marijuana.  But the feds have fought him tooth and nail for over a decade.

So the same federal government which refuses to allow reform without further research has expended the strength of its resources – your taxpayer money – to prevent such research from ever taking place.  And the Circuit Court of Appeals says that’s perfectly logical.

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