A federal lawsuit is stepping up pressure on the U.S. Health and Human Services Department (HHS) to release a letter at the center of the Biden administration’s recent recommendation that the Drug Enforcement Administration (DEA) reschedule marijuana.
A complaint filed Friday in U.S. District Court in Washington, D.C., by attorney Matthew Zorn says the letter “has become an item of public interest” and asks the court to compel HHS to release what the suit calls “improperly held agency records.”
The existence of the ostensible rescheduling recommendation letter, from HHS Assistant Secretary for Health Rachel Levine to DEA Administrator Anne Milgram, was referenced in an August 30 report by Bloomberg News, though it has not yet been made public. The same day that article was published, an HHS spokesperson confirmed to Marijuana Moment that the department “provided its scheduling recommendation for marijuana to the DEA on August 29, 2023.”
The day the news broke, plaintiff Zorn filed a Freedom of Information Act (FOIA) request through an HHS online portal seeking to obtain the referenced letter. His lawsuit alleges the department has failed to respond that request in a timely manner in accordance with the law.
HHS “has not produced the requested record” and “did not make a timely determination within 20 days,” the complaint alleges in a series of brief paragraphs:
Plaintiff requested expedited treatment.
HHS did not make a timely determination on expedited treatment.
Plaintiff seeks Court order ordering HHS to produce the requested record to Plaintiff.
Zorn’s suit asks the judge to force HHS to expedite his request and direct the department “to immediately produce the requested record.” It notes that Zorn “intends to post it on the internet for free” on his Substack website, where he first announced the new lawsuit.
Despite a slew of news coverage and industry commentary on the potential for rescheduling marijuana to Schedule III under the Controlled Substances Act (CSA), no one outside the government and Bloomberg News seems to have obtained or even glimpsed the rescheduling recommendation.
“This document is one of the most important documents from a government standpoint, and it doesn’t seem like anyone is fighting for it,” Zorn told Marijuana Moment in an interview. While he said he’s aware of some journalists who are seeking it, “I’m not aware of the cannabis industry doing anything” to make the letter public.
Marijuana Moment filed its own FOIA request following the first report of the letter’s existence.
While Zorn acknowledged that typically the rescheduling process happens internally, he said the government invited public interest when HHS Secretary Xavier Becerra confirmed news reports through a social media post at exactly 4:20 p.m.
We’ve worked to ensure that a scientific evaluation be completed and shared expeditiously. pic.twitter.com/p84x8p07sP
— Secretary Xavier Becerra (@SecBecerra) August 30, 2023
Since then, Zorn noted, industry groups, investors and advocates have scrambled to make sense of the implications of the proposed change. He said he was shocked how much speculation has occurred over a document that so few have seen.
“You have senators that are putting forward legislation to block this, you have the [Congressional Research Service], like—for the life of me, I’ve never seen so many people write about something that they don’t have,” he said.
“To understand what can happen from here, you need to understand what were the reasons HHS came to that conclusion,” Zorn argued. Outside the cannabis space, “I don’t know that other companies would be okay with something like this. You hear about this momentous event and [they] just completely blindfold themselves.”
Because HHS is recommending for the first time that marijuana be removed from Schedule I, Zorn reasoned, “you know as a matter of fact that there has to be something new from a legal standpoint in that document. Because you know in the past, like, every time that this issue has come up, both HHS and DEA have said ‘no accepted medical use.’ Something changed.”
He said he agreed with a point of criticism from Kevin Sabet, the leader of the prohibitionist group Smart Approaches to Marijuana.
Sabet “was like, ‘This isn’t what a serious process looks like,'” Zorn said. “I even, like, retweeted this tweet.”
It is highly unusual that a scheduling *recommendation* would be paraded abound with such fanfare—and at 4:20, no less? This is becoming parody. https://t.co/5Cu4GW7Omm
— Kevin Sabet (@KevinSabet) August 31, 2023
“This isn’t what a serious process looks like,” Zorn told Marijuana Moment. “I mean, if this were based on the data and science, show us the data and science, right? Don’t show us tweets and PR stuff and everything.”
“Honestly, nobody said that the administration had to go basically make this a public process,” he added. “But once they chose to make this a public process, I think it owes the public more.”
DEA is in charge of the next step of rescheduling, but two Republican senators recently introduced a bill that would strip the department of that power, preventing all federal agencies from rescheduling cannabis without approval from Congress.
Last month, 14 GOP lawmakers sent a letter urging DEA to reject the marijuana rescheduling recommendation.
Another federal lawmaker, Rep. Greg Murphy (R-NC) has said he’s “very concerned” about the HHS guidance. In a letter to Secretary Becerra, he listed 11 questions he wants answers to by October 3, including how HHS arrived at its rescheduling recommendation, which officials “were consulted with or contributed to” the recommendation and which outside stakeholders had a seat at the table.
President Joe Biden first requested the HHS rescheduling review late last year.
In March, Congressional Cannabis Caucus co-chair Rep. Earl Blumenauer (D-OR), alongside 15 other bipartisan members of Congress, wrote to Becerra and Attorney General Merrick Garland, demanding transparency in the cannabis scheduling review.
But the process so far has been far from transparent.
At a House Judiciary Committee hearing in July, DEA Administrator Anne Milgram told Rep. Matt Gaetz (R-FL) that the president “had sent a letter to the secretary of HHS and to the attorney general to ask for the scheduling—descheduling process to begin.”
Gaetz requested a copy of correspondence between Biden and HHS containing the rescheduling review request, and Zorn too filed a Freedom of Information Act request. Gaetz has separately expressed concern that moving marijuana to Schedule III may inadvertently lead the pharmaceutical industry to overtake the cannabis industry.
In August, HHS said it had no record of the letter ever existing. Then in recent weeks, the DEA head said she misspoke when referring to a literal “letter.”
Biden, for his part, hasn’t personally commented on HHS’s rescheduling recommendation, but the White House press secretary did say that the president has been “very clear” that he’s “always supported the legalization of marijuana for medical purposes.”
Of course, it’s not accurate to say that Biden has “always” backed cannabis reform. As a senator he championed several pieces of legislation that ramped up the war on drugs.
While marijuana rescheduling would not federally legalize access through current state-level medical cannabis programs, it would free up research into the plant and have significant implications for the marijuana industry.
Congressional lawmakers across party lines have applauded the top health agency’s recommendation. Some have described it as an important “step” on the path to federal legalization. Others have claimed credit for the move, pointing to their years of advocacy around marijuana reform.
Politically, moving marijuana from Schedule I to Schedule III would allow the president to say that he’s helped accomplish a major reform, facilitating an administrative review that may result in rescheduling more than 50 years after the government launched its war on drugs and placed cannabis in the CSA’s most restrictive category.
The change would not, however, fulfill Biden’s campaign pledge to decriminalize marijuana.