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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

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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?

5 Comments

5 Comments

  1. Neal

    June 12, 2019 at 5:27 am

    Yes, I cannot wait!! This is long overdue, and what is holding it up is corruption, to be Frank.
    Can someone get Willy and Snoop up here in Indiana to spark some joy up in this hizzy?
    We need all the help we can get to overturn the legislative strangle-hold in Indiana.
    They are hell bent on locking ppl up, ruining lives in the process. We need help!!

  2. Bill Wade

    June 7, 2019 at 4:14 pm

    Dominos are falling, perhaps slower than we want but today we are a day closer to federal Legalization. Too many hard working advocates and too much public support to ignore. Stop the needless arrests and waste of time and resources, legalize.

  3. Paul

    June 7, 2019 at 12:09 pm

    Declassified we already have been giving money to the individuals that the government has been going to war with on their war on drugs, so stop feeding the enemy and take care of the people who need the stuff.

  4. YearofAction

    June 6, 2019 at 4:37 pm

    Federal marijuana prohibition does not require cannabis prohibition. The definition of marijuana must first be reconstructed by Congress so that its meaning is clear enough that it cannot be misconstrued to mean cannabis any longer. Congress must first legislatively override the persistent misconstruction that marijuana means cannabis before the DEA can remove marijuana from Schedule 1.

    The federal definition of marijuana has been malformed ever since it debuted in the Marihuana Tax Act of 1937. Its structure was strategically malformed so that it could be literally misconstrued to equate marijuana with cannabis. Recognition of the persistent misconstruction has been willfully suppressed. The definition must be rationally reconstructed to make sense.

    There have been three versions of the definition, and each version has retained the malformed structure that the original version had. They are malformed because they use the racist term “marihuana”; because they consistently adumbrate (i.e. literally outline) the actual meaning of marijuana instead of directly stating its meaning; because the second part of each definition literally conflicts with the first part of the definition; and because they do not mention THC. It is curious how the definition of marijuana does not mention THC but marijuana is characterized as a drug, while the definition of hemp does mention THC but hemp is not characterized as a drug.

    When someone says “marijuana is all parts of the plant Cannabis sativa L.”, don’t reply with “but, it also says the mature stalks are not included”. Instead, say “and simultaneously, the mature stalks are not included”. What is all parts of cannabis and simultaneously not the mature stalks?

    Cannabis smoke is the adumbrated meaning. This can be proved by standing on the downwind side of the burning piles of cannabis plants that are uprooted by the marijuana task force. Their job is to manufacture marijuana by destroying all parts of cannabis with fire. When the fire goes out then the cannabis is destroyed, and so is the marijuana. If they used a wood-chipper, then they would simply be an anti-cannabis task force.

    The definition must be reconstructed to reveal its adumbrated meaning by clearly describing how marijuana is actually derived from cannabis and explicitly stating the existing federal prohibitions that control the undesired proliferation of marijuana, thereby carefully descheduling cannabis. In this election season, why should voters let their members of Congress delay the reconstruction of the definition any longer?

    Congress has the authority to invoke Section 5 of the 14th Amendment to specifically restore and protect the exclusive privileges and immunities of citizens to grow the versatile and valuable renewable natural resource that is cannabis, which was established in 1868 by Section 1 of the 14th Amendment and promised to people in 1791 by the 9th and 10th Amendments, by reconstructing the definition to carefully deschedule cannabis by revealing the adumbrated meaning of marijuana.

    This necessary and proper reconstruction of the federal definition of Schedule 1 marijuana will uphold our Constitution by revealing the adumbrated meaning of marijuana and carefully descheduling cannabis:

    The term “marijuana” means all parts of the smoke produced by the combustion of the plant Cannabis sativa L. which is, as are the viable seeds of such plant, prohibited to be grown by or sold by any publicly traded corporation or subsidiary company, and such smoke is prohibited to be inhaled by any child or by any person bearing any firearm, as is the intake of any part or any product of such plant containing more than 0.3% THC by weight unless prescribed to such child by an authorized medical practitioner.

    Let’s tell our members of Congress how to reconstruct the definition of marijuana so the the DEA can then remove marijuana from Schedule 1.

  5. Lee Coartney

    June 6, 2019 at 3:15 pm

    Yes Please!!!!! cannabis should be reclassified in the same category as a super plant that has the same properties as green vegetables or super fruits ! Cannabis should be declassified all together because it is a healing plant not a man made substance that kills your body! Cannabis heals your body!!! God Speed to all involved who are for the plant(cannabis)!!! And to those who oppose you must be ignorant or getting paid off to be against the legalization of cannabis!!!

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