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U.S. Appeals Court Orders DEA to Consider Cannabis Rescheduling Petition

Court Orders DEA to Consider Rescheduling Cannabis
Photo by Gracie Malley for Cannabis Now


U.S. Appeals Court Orders DEA to Consider Cannabis Rescheduling Petition

The Cannabis Cultural Association won a limited legal victory, with a federal appeals court ruling that the DEA must consider with “alacrity” their petition to have cannabis rescheduled.

Efforts to have cannabis rescheduled were moved forward last week by a 2-to-1 ruling of the Second U.S. Circuit Court of Appeals in New York City, finding that the Drug Enforcement Administration must “act promptly” if formally petitioned to take another look at the question.  

The May 31 decision came in a case originally filed as Washington vs. Sessions, although Jeff Sessions has since stepped down as attorney general. It challenged the DEA’s refusal to reconsider in a timely manner the current classification of cannabis as a Schedule I controlled substance — the most restrictive category under the federal Controlled Substances Act, along with heroin. Morphine and cocaine, in contrast, are actually in the less restrictive Schedule II.

The case was brought by the Cannabis Cultural Association and is named for one its co-plaintiffs, retired professional football player and Super Bowl Champion Marvin Washington, who aspires to obtain grants under the Federal Minority Business Enterprise program for cannabis businesses — specifically ones that would make cannabis available to sports professionals and others to reduce opioid dependency and addiction. Another co-plaintiff is disabled Iraq combat veteran Jose Belen, who uses medical cannabis to control his post-traumatic stress disorder, or PTSD.

Court Mandates DEA ‘Alacrity’

The Second Circuit ruling does not actually decide the case but places it in abeyance while calling upon the DEA to ensure that any rescheduling petition is adjudicated with “alacrity,” as in sooner rather than later. The DEA, despite being a law enforcement agency under the Justice Department, rather than a scientific or medical body, has responsibility for determining the classification status of cannabis under the 1970 Controlled Substances Act.

“The record makes clear that the CSA doesn’t make any rational sense, and the federal government knows it,” said Michael Hiller, lead counsel in the case, in a press statement.

The Second Circuit actually seemed to echo this sentiment. “It is possible that the current law, though rational once, is now heading towards irrationality; it may even conceivably be that it has gotten there already,” wrote Judge Guido Calabresi, according to the Associated Press

“A sensible response to our evolving understanding about the effects of marijuana might require creating new policies just as much as changing old ones,” Calabresi added in the majority opinion, noting that the plaintiffs claimed cannabis has extended their lives, stopped seizures and made pain manageable.  “If true, these are no small things. Plaintiffs should not be required to live indefinitely with uncertainty about their access to allegedly life-saving medication or live in fear that pursuing such medical treatment may subject them or their loved ones to devastating consequences.”

In a statement to Cannabis Now upon the Second Circuit ruling, the Cannabis Cultural Association said, “Our legal team will continue the fight… Next step will be the petition.” The DEA last turned down a bid to reschedule cannabis in August 2016.

But Don’t Believe the Hype

Meanwhile, in the eagerness for progress on the rescheduling or descheduling of cannabis, some irresponsible media reports are seizing upon the legal ambiguities left in the wake of last year’s federal Farm Bill. That landmark law legalized hemp — defined as cannabis with less than 0.3% THC — and descheduled both CBD derived from hemp and the THC in hemp.

Since it passed in December, the federal bureaucracy has been struggling to catch up with the law, bringing regulations into conformity with the requirements of a legal market in hemp and hemp-derived CBD. Late in May, Real Money website made note of a recent such effort, and headlined a story: “The USDA Legalized THC—But No One Noticed.”

The account says “It slipped under the radar… but the United States Department of Agriculture just descheduled tetrahydrocannabinol (THC). The USDA issued a bulletin on May 28 as a legal opinion for hemp production. It basically authorizes interstate delivery of hemp and legalized THC derived from hemp.”

Mark Singleton, the owner of Singleton Investments, is quoted saying “This removes the argument of 0.3% THC.” The report elaborates: “If hemp THC is legal then it doesn’t matter whether it is 0.3% or not.”

Actually, yes it does. The USDA memo concerns protocols for interstate commerce in hemp, and says nothing about “hemp-derived” THC. (That is the phrase used in the law for other cannabinoids, e.g. CBD, and quite specifically not for THC.) The memo does refer, repeatedly, to “THC in hemp”—that is, the minuscule amount naturally occurring in cannabis varieties classified as hemp. So, alas, the 0.3% threshold remains entirely relevant.

Furthermore, the USDA has no authority to reschedule cannabis or THC. Only the DEA can do that — or Congress, which gave the DEA the authority to oversee scheduling back in 1970. Various bills to reschedule or deschedule cannabis are currently pending on Capitol Hill.

The Second Circuit ruling brings us one step closer to that eventuality. But there is no percentage in wishful thinking.

TELL US, do you think cannabis should be descheduled or rescheduled?

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