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Summary Of Oral Arguments In Federal Cannabis Rescheduling Case

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asa v dea americans for safe access schedule 1Federal Appeals Court Hears Case On Medical Value Of Marijuana

By Jonathan Bair, Americans for Safe Access

This morning, the federal Appeals Court for the DC Circuit heard an appeal in the case called Americans for Safe Access v Drug Enforcement Administration. The case is an appeal of the DEA’s rejection of a petition filed in 2002 seeking to change the placement of marijuana as a Schedule I drug per the Controlled Substances Act. Based on the scientific evidence, ASA and our fellow plaintiffs feel that it is simply untrue that cannabis is a drug with a “high potential for abuse” and “without accepted medical use in treatment in the United States.” The hearing today offered a glimpse at the Court’s approach to this topic.

In front of a packed courtroom in Washington, the three-judge panel questioned ASA’s Chief Counsel Joe Elford and a federal lawyer about the merits of the scientific case, and the crucial legal issue of “standing.” Standing is a legal concept that restricts the right to sue to injured parties – people who are directly hurt by what they are fighting, and can get relief from a legal judgement. The issue of standing has been the reason why two prior appeals of the DEA’s classification of marijuana were rejected. In the past, patients have not been part of lawsuits against the Controlled Substances Act. The three judges were Merrick Garland, Karen Henderson, and Harry Edwards.

ASA’s Chief Counsel Joe Elford opened his appeal by arguing that the federal “Department of Health and Human Services plays a game of gotcha” by tightly controlling research access to cannabis and then claiming that there is not enough compelling research to justify reconsidering it as Schedule I. The Drug Enforcement Administration erred by determing that cannabis has a high potential for abuse when its findings determine its abuse and harm potential is less than other substances in less-controlled schedules, such as cocaine.

Elford opened his arguments with the issue of standing. He pointed to the affidavit of plaintiff Michael Krawitz, a veteran denied access to Veterans Administration services because of his medically necessary use of marijuana. The Veterans Administrastion’s harmful policy is based on marijuana’s status as a Schedule I substance. He also spoke of the many members of Americans for Safe Access, who are fearful of the consequences of cultivating their own cannabis for their medical needs, and that a medical necessity defense in court could be allowed if marijuana were not in Schedule I.

Elford then turned to the issue of the merits of the DEA’s position on marijuana’s medical value, to prove their position was “arbitrary and capricious” and therefore impermissible. The contention that there is not a complete consensus was argued to be an unreasonable interpretation of the regulatory standard, and that many of HHS’s standards are inapplicable to an organic substance. Significantly, the lack of access to marijuana for medical research is a consequence of the scheduling, yet the lack of suitable research is cited by the DEA as a reason for maintaining the schedule. Despite this lack of research access, ASA cited a growing body of high-quality scientific and medical research into the benefits of marijuana.

Judge Garland asked Elford if he was arguing that marijuana in fact meets HHS’s standard for studies. ASA’s counsel cited over 200 studies and argued that a circular standard is impossible to meet. He also said that, given that the schedule is relative, the DEA is ignoring even its own studies showing that marijuana has merely a “mild” potential for abuse.

Joe Elford concluded by arguing that Schedule I was an inappropriate classification of marijuana and it caused harm to patients and prevented meaningful medical research. Rescheduling marijuana would allow for a reasonable policy solution for suffering patients and uphold the intent of the Controlled Substances Act.

Judge Edwards asked about the standing of Mr. Krawitz, and his access to medical marijuana. The judges asked about access in medical states and noted that marijuana would not be legal just because it were rescheduled.

Federal counsel Lena Watkins then presented her position against appealing the DEA’s decision to continue cannabis in Schedule I. She noted that state legislatures or popular votes do not determine accepted medical use. She said that research is inadequate and has not progressed, and argued that the government does provide access for research.  Turning to the abuse potential, Watkins said, “marijuana is the most widely abused drug in America,” and dependency is a factor in making that assessment.

The judges questioned the level of access provided for research, and Watkins said that fifteen studies of a specific federal “quality” metric have been allowed. Pressed to explain why these studies haven’t persuaded the DEA that marijuana has medical benefits, she said, “we don’t have the final results yet.” To many in the audience, the circular nature of the government’s position on the science of marijuana was clear. The judges then invited Elford to give a rebuttal.

Focusing on rebutting the government’s claims about research, Elford argued that there has been adequate study and even more since this case was filed in 2002, and noted that he would like to admit additional evidence to the case. Summarizing by turning the government’s “no substantial evidence” argument on its head, Elford said that both sides agree more research needs to be done and that research can only happen if marijuana is released from Schedule I. Requiring the DEA to make scientific determinations on a new schedule would lead to better policy and more relief for suffering patients.

The patients spoke out at a well-attended press conference after the hearing, and Americans for Safe Access is proud to have given patients a day in court. Many observers felt the judges were willing to consider the argument of Michael Krawitz’s direct harm from the Controlled Substances Act, and this issue of “standing” has been the Achilles heel of past lawsuits against Schedule I. However, Judge Garland asked at one point, “Don’t we have to defer to the agency? We’re not scientists. They are.”

We’ll find out whether the judges felt the DEA’s science is adequate, or if patients can sue for a medical necessity defense against harsh marijuana laws, when the judges rule. We don’t expect it for a few months. This opportunity is thanks to the brave plaintiffs who took on the federal government on behalf of many others.

Jonathan Bair is ASA’s Social Media Director. Recordings of any kind were not allowed in the courtroom.

Source: Americans for Safe Access

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52 Comments

  1. Response to Judge Garland’s question should be “No, the DEA does not consist of scientists. In fact it has specifically filtered out all honest scientists. It consists of cops. As for the scientists at the HHS, they have admitted that cannabis has accepted medical uses.”

    Something to remember for the appeal.

  2. Unfortunately it’s not as simple as the DEA rescheduling MJ. The United States is a signatory to an international treaty (Single Convention on Drugs) that mandates MJ be classed as a schedule 1 narcotic. The United States Senate will have to get involved to fix that.

  3. If they would just PROPERLY reschedule this substance (I absolutely REFUSE to call it a “drug”…it’s a frickin’ PLANT…at BEST it’s an HERB) all of the problems surrounding it would end, at least IMHO. The states that have legalized for medical use will stop having their patients harassed by the feds and the states that have just legalized across the board can start collecting their taxes and showing the rest of the country that legalization is pretty much all upside, then the rest of the states can follow suit and the world can be a happy place (and lord knows the tax revenues combined with the law enforcement/incarceration savings would likely save the economy as well). LEGALIZE 4:2012!! :D

    I wonder how much longer it will be before we learn the ruling?? I just SO hope they do the right thing!!

  4. and created a prison industrial complex for a profit, trading on WAll st.
    Jim Crow laws provide Fodder!
    Modern Day Slave Trading!

  5. state source? THC = no record of death
    Unless you quote the “mice” that were gas masked to death that died from lack of oxygen to the brain! And they still tote around that propaganda!

  6. alcohol is the most widely used drug, to bad the people using/abusing alcohol

    dont even consider it a drug!

    ie: drugs and alcohol.

    I think they refer to it as the most “abused drug”

    its still another lie either way!

  7. I’m sure that coffee is the #1 drug in America. It also seems that pure caffeine and pure refined THC have similar lethal dose thresholds. Aside from this, cannabis extracts are approved medications in the UK and other countries.

  8. Thanks to medical marijuana i have been able to cut my intake of narcotic pain pills in half.The quality of my life has improved.For me it just takes a little bit is all i need

  9. These are Doctors who are protected, they are a front to gather a data base of users for Federal Government

  10. The people must unite and stand against Federal Government. Has any one read their position on cannabis. By the same laws that outlawed it in 1937. You are a criminal and an addict. I refuse to be labelled by government. Rules are meant to be broken when principles apply. They have failed the people. And robbed them of their vote.

  11. That’s funny. Doesn’t America know satire anymore? I’ll bet Opinionated is a pot smoker. The “system” is all ready making construction real-estate, and management companies, rich building prisons. So he said “they are now getting rich off addicts and criminals by being patients and having dispensaries??? HA HA HA! That’s funny!

  12. Would not I qualify for ‘STANDING’ against the FDA in that I contracted Diabetes & worst of all Diabetic Neuropathic Gastroparesis (Paralyzed Stomach) by following Dr’s orders and taking my methadone daily for 10-12 years. I am now 100% methadone free, healthier and have gained back some lost weight. All thanks to Cannabis and Colorado. I still get sick about 4 times a year, it use to be every 3 weeks. But with cannabis I have an safe & effective way of controlling chronic nausea & vomiting. Of which the FDA has nothing, zero, zip! Ergo due to FDA rules my health was damaged by following Dr’s order’s who was following FDA’s order’s.

  13. “and this issue of “standing” has been the Achilles heel of past lawsuits
    against Schedule I. However, Judge Garland asked at one point, “Don’t
    we have to defer to the agency? We’re not scientists. They are.” What gives Judge Garland the idea there are any scientists in the DEA?
    I still don’t see the issue of “standing” as a problem. That is just verbal BS. used to obfuscatethe ishue.

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