Scientists have successfully forced the Drug Enforcement Administration (DEA) to release an internal document that was allegedly used to justify delaying the approval of additional marijuana manufacturers for research purposes. And it reveals that the Justice Department feels that the current licensing structure for cannabis cultivation has been in violation of international treaties for decades.
The Scottsdale Research Institute (SRI), which is one of several applicants seeking federal authorization to cultivate cannabis for studies, filed a lawsuit under the Freedom of Information Act (FOIA) last month, claiming that DEA had relied on a “secret” memorandum interpreting international drug treaties to avoid accepting more manufacturers.
On Tuesday, the parties reached a settlement in the case. And DEA released the Department of Justice Office of Legal Counsel (OLC) document on Wednesday, as part of the agreement.
The June 2018 memo—titled “Licensing Marijuana Cultivation in Compliance with the Single Convention on Narcotic Drugs”—was published, unredacted, on the Justice Department’s site.
“The parties acknowledge that this Settlement Agreement is entered into solely for the purpose of settling and compromising the claims in this action without further litigation, and it shall not be construed as evidence or as an admission regarding any issues of law or fact, or regarding the truth or validity of any allegation or claim raised in this action, or as evidence or as an admission by Defendants regarding Plaintiff’s entitlement to any relief (including attorneys’ fees or other litigation costs) under the Freedom of Information Act,” the text of the filing in the U.S. District Court for the District of Arizona states.
The document largely confirms what the scientists had suspected. They argued that, following a DEA announcement in the waning months of the Obama administration in 2016 that it would approve additional marijuana manufacturers, the Trump administration’s OLC secretly issued the 2018 internal government opinion that interprets international treaty obligations as making it impossible to fulfill that pledge.
OLC determined in the memo that the international Single Convention treaty requires just one federal agency to have sole control over the purchasing and possession of cannabis cultivated for research purposes. And because two agencies—DEA and the National Institute on Drug Abuse (NIDA)—currently have roles in this process, it’s in violation of that treaty obligation.
In order to resolve that issue and allow additional cultivators, OLC said DEA needed to issue a revised new rule to be in compliance with treaties.
“We conclude that DEA must change its current practices and the policy it announced in 2016 to comply with the Single Convention,” the memo states. “DEA must adopt a framework in which it purchases and takes possession of the entire marijuana crop of each licensee after the crop is harvested. In addition, DEA must generally monopolize the import, export, wholesale trade, and stock maintenance of lawfully grown marijuana.”
“There may well be more than one way to satisfy those obligations under the Single Convention, but the federal government may not license the cultivation of marijuana without complying with the minimum requirements of that agreement,” the Justice Department said.
“Under the CSA, DEA may register an applicant to cultivate marijuana only if the registration scheme is consistent with the Single Convention.”
Further, it explained that while the government assumed it was complying with international treaties by having NIDA regulate a single cannabis cultivation facility for research purposes while DEA has been responsible for registering scientists authorized to utilize such products, that isn’t necessarily the case—for three reasons.
“We conclude that the existing licensing framework departs from Article 23 [under the Single Convention] in three respects. First, the division of responsibilities between DEA and NIDA, a component of the Department of Health and Human Services (‘HHS’), contravenes Article 23(2)’s requirement that all Article 23 functions be carried out by a single government agency. Second, neither of the two government agencies ‘take[s] physical possession’ of the marijuana grown by the National Center, as required by Article 23(2)(d). Third, no federal agency exercises a monopoly over the wholesale trade in marijuana, as required by Article 23(2)(e).”
NIDA, which operates under the U.S. Department of Health and Human Services, is not overseen by DEA, raising problems with the single-agency requirement for marijuana licensing, the memo contends. The Justice Department also concluded the situation couldn’t be resolved administratively, as the president “may not delegate to DEA his constitutional authority to supervise NIDA in the exercise of its statutory responsibilities.”
The memo also notes that under the current licensing scheme, neither DEA or NIDA physically take possession of marijuana grown by the contracted third-party, the University of Mississippi facility. Instead, it’s delivered directly to DEA-registered researchers—another violation of international treaties.
“The contract at most results in a federal government agency’s having constructive, rather than physical, possession of the marijuana crop,” OLC said. “We think it evident from the treaty’s text and context that ‘physical possession’ requires growers licensed under the CSA to transfer the crops to the physical, and not merely legal, control of the federal government.”
The university manufacturer—known as the National Center—is “not an extension of the federal government,” the memo continues. What’s more, DEA “certainly does not have title to the crops” grown there.”
“Even if NIDA had formal legal title to the crops, the current arrangement would still have to be adjusted to comply with the treaty’s requirement that a single government agency be charged with licensing cultivators, purchasing, and physically possessing the crops… The government agency responsible for the relevant controls must own the crops and be the sole distributor of the marijuana. In allowing the National Center to maintain possession of the marijuana and ship it to DEA-approved researchers, the NIDA contract does not create the required government monopoly over the lawful marijuana trade.”
OLC noted that several other countries—Canada, the United Kingdom and Israel—are similarly violating the Single Convention mandates.
“While DEA focuses on its view of the broader purposes of the treaty’s requirements, the Single Convention requires the United States to adopt specific, listed controls if it licenses cannabis cultivation,” the memo reiterates. “A single government agency must purchase and take physical possession of harvested cannabis, and generally monopolize the wholesale trade in that plant. The United States cannot satisfy those requirements simply by employing alternatives that the government believes may prevent unlawful diversion.”
“We conclude that DEA must alter the marijuana licensing framework to comply with the Single Convention.”
The agency concluded that it sees “no reason why the NIDA contract framework might not remain in place under a system in which DEA assumes clear title to the marijuana, either at inception or by purchase after harvest, and then takes physical possession after harvest.” And DEA could, theoretically, “station one or more employees at the National Center after cultivation as a way of ensuring physical possession of the marijuana and exclusive control over its distribution.”
It was previously reported that the Justice Department, under then-Attorney General Jeff Sessions, a vociferous opponent of cannabis reform, blocked DEA from processing any of the several dozen cultivation license applications it received in response to the 2016 announcement. Attorney General William Barr has taken a different tone, however, telling lawmakers that he’s pushed “very hard” to get more manufacturers approved and that he thinks “it’s very important to get those additional suppliers.”
The reason all of this matters to researchers and advocates is because of issues resulting from the monopolized cannabis supply for research purposes at the University of Mississippi. And studies have indicated that the marijuana it produces is not reflective of the cannabis sold in retail dispensaries in legal states, raising questions about the veracity of previous studies that have relied on it.
Three years after DEA announced it would begin approving more manufacturers, applicants didn’t hear anything back, and SRI filed an initial lawsuit alleging that the agency was deliberately holding up the process. A court mandated that it take steps to make good on its promise, and that case was dropped after DEA provided a status update.
Last month, DEA did unveil a revised proposal that contained changes the agency said were necessary due to the high volume of applicants and to address potential complications related to international treaties. A public comment period is now open, after which point the agency says it will finally approve an unspecified number of additional growers.
That was a step in the right direction as far as advocates are concerned, but the proposed rule neglected to provide information about how the Justice Department advised DEA on the matter and which parts of the amended proposal would make expanding cannabis cultivators compliant with international treaties.
SRI argued in its latest lawsuit that DEA had violated federal statutes that prohibit the creation of “secret law.” Federal agencies must make records—including final opinions and policy interpretations not published in the Federal Register—public, the case maintained.
Now that the Justice Department memo has been publicly released as a result of the FOIA lawsuit, the newly revised rule makes contextual sense, with DEA proposing that it will maintain authority over the purchasing and possession of research-grade marijuana as required under international treaties. As such, the rule seems to resolve OLC’s concerns.
Read the OLC memo below:
Read the DEA marijuana FOIA settlement and related documents below:
This story has been updated to include the newly disclosed OLC memo.
Photo courtesy of Mike Latimer.
Kansas Medical Marijuana Hearings Cancelled After Senate GOP Leader Reroutes House-Passed Bill
A House-passed bill to legalize medical marijuana in Kansas seems to be in jeopardy, with GOP Senate leadership moving the legislation out of a committee and into a different panel where it may sit in legislative limbo, resulting in the cancellation of hearings that were scheduled to be held this week.
Advocates are concerned about the decision by Senate President Ty Masterson (R), who withdrew the cannabis reform legislation from the Senate Federal and State Affairs Committee days before hearings were to be held on Tuesday and Wednesday. It was then re-referred to the Senate Interstate Cooperation Committee, which Masterson chairs and where the bill’s fate is unclear.
This doesn’t necessarily mean that medical marijuana legalization is off the table for Kansas in 2022, but it does seem to signal that the reform might need to be enacted through another vehicle, either in the legislature or at the ballot, as top Democratic lawmakers in the state are pursuing.
“We certainly hope that this action is just making sure that this bill meets any concerns that Senate leadership may have concerning this historic legislation,” Kevin Caldwell, a legislative manager at Marijuana Policy Project (MPP), told Marijuana Moment. “This bill had widespread bipartisan support in the House last session. We hope Senate President Masterson quickly holds a committee hearing and advances this legislation.”
When the proposal was being advanced in the House last year during the first half of the two-year session, members amended an unrelated bill that previously cleared the Senate to make it the chamber’s vehicle for the policy change. Because of that, it was ruled “materially changed” last May and sent to the Senate for committee consideration.
Now there’s a question of whether lawmakers will be motivated to introduce another separate bill and try to move it through both chambers, requiring another House vote. The Senate president seemed to temper expectations in recent remarks, telling The Kansas City Star that “not a single member” of his caucus has expressed that the issue “was important to them.”
That’s not how Kansas Democrats feel, however. House Minority Leader Tom Sawyer (D) and Assistant Minority Leader Jason Probst (D) said this month that they will be introducing proposals to let voters decide on legalizing medical and adult-use marijuana in the state. At the time, Sawyer said he was “hopeful” that the legislature might separately advance the House-passed legalization measure.
Marijuana Moment is already tracking more than 1,000 cannabis, psychedelics and drug policy bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.
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“The people of Kansas deserve to know if senators support the overwhelming majority of people who want to alleviate patients’ suffering with a medical cannabis program,” MPP’s Caldwell said. “Now is the time to show compassion to their fellow citizens and vote this bill out of committee.”
“Kansas is one of fourteen states left without a medical cannabis program,” he said. “We have faith that the Kansas Senate will pass this legislation this session and this is just another step in that process.”
Michael Pirner, Masterson’s communications director, told the Star that “medical marijuana legislation is not a priority of Senate leadership,” but did signal the issue may still be considered before the year is over.
“The subject matter has clearly matured and we expect it to be considered at some level this session,” he said. “There are many more pressing topics on the Senate agenda.”
The bill as drafted contains several significant restrictions, including a ban on smokeable cannabis. Members of the Senate Federal and State Affairs Committee did get a briefing on the issue at a meeting last week ahead of the expected, now-cancelled formal hearings before the panel.
Meanwhile, the constitutional amendment that the Democratic leaders are proposing would provide for a more comprehensive program that lawmakers would need to implement.
Gov. Laura Kelly (D), for her part, wants to see medical cannabis legalization enacted, and she said at a briefing with reporters on Friday that she “absolutely” thinks the bill could pass if “everything else doesn’t take up all the oxygen.”
She previously pushed a separate proposal that would legalize medical cannabis and use the resulting revenue to support Medicaid expansion, with Rep. Brandon Woodard (D) filing the measure on the governor’s behalf.
Kelly has she said she wants voters to put pressure on their representatives to get the reform passed.
The governor also said in 2020 that while she wouldn’t personally advocate for adult-use legalization, she wouldn’t rule out signing the reform into law if a reform bill arrived on her desk.
Photo courtesy of Philip Steffan.
Marijuana Banking Bill Sponsor Says He’s ‘Gonna Get That Darn Thing Passed’ Before Leaving Office
Rep. Ed Perlmutter (D-CO) is retiring from Congress at the end of this session, but he says that he’s going to work to pass his marijuana banking bill before his time on Capitol Hill comes to an end.
The congressman spoke to Colorado Public Radio last week about his decision not to run for reelection this November and his disappointment that, while the House has approved the Secure and Fair Enforcement (SAFE) Banking Act five times now in some form, the Senate has failed to advance it under both Republican and Democratic leadership.
“That one still has me pretty irritated,” Perlmutter said, referring to the fact that Senate Majority Leader Chuck Schumer (D-NY) has effectively blocked his bipartisan legislation. When there was a GOP Senate majority, he was told the bill was “too big and too broad.” Then with a Democratic majority, he’s told that it’s “too narrow and too limited.”
Schumer and his colleagues who are working on a federal legalization bill have repeatedly said that they do not want to see the SAFE Banking Act pass before comprehensive reform is enacted that addresses equity issues. Supporters of the banking bill argue that the incremental policy change is necessary for promote public safety and, importantly, it stands a much stronger chance of getting to the president’s desk with bipartisan support.
Nonetheless, Perlmutter said he plans to spend his remaining months in office pushing to get the job done.
“I have not given up on that one,” he said. “I’m gonna get that darn thing passed this year while I still serve out my term.”
Listen to Perlmutter discuss the marijuana banking legislation, starting around 10:24 into the audio below:
Asked whether he thinks President Joe Biden would be inclined to sign the measure if it did get to his desk, the congressman said “absolutely.”
“Treasury Secretary [Janet] Yellen is somebody who has been talking to me about this for years,” he said. “I feel very good that it would pass. We’re at 47 states that have some level of marijuana use, all the territories and District of Columbia, and they need to have legitimate banking services.”
“It’s just a no brainer in my opinion,” he said. “And yeah, I’m a little bit irritated, but we’re gonna keep working on it and get it passed this year.”
The last attempt that Perlmutter made to enact the reform was by adding its language to a must-pass defense bill, but it was ultimately sidelined following bicameral negotiations and did not make it into the final version. The congressman told Marijuana Moment last month that he sees other potential vehicles to advance the bill and has spoken with House Speaker Nancy Pelosi (D-CA) about it.
Even some Republicans are scratching their heads about how Democrats have so far failed to pass the modest banking reform with majorities in both chambers and control of the White House. For example, Rep. Rand Paul (R-KY) criticized his Democratic colleagues over the issue last month.
Top Federal Drug Official Says ‘Train Has Left The Station’ On Psychedelics As Reform Movement Spreads
A top federal drug official says the “train has left the station” on psychedelics.
National Institute on Drug Abuse (NIDA) Director Nora Volkow said people are going to keep using substances such as psilocybin—especially as the reform movement expands and there’s increased attention being drawn to the potential therapeutic benefits—and so researchers and regulators will need to keep up.
The comments came at a psychedelics workshop Volkow’s agency cohosted with the National Institute of Mental Health (NIMH) last week.
The NIDA official said that, to an extent, it’s been overwhelming to address new drug trends in the psychedelics space. But at the same time, she sees “an incredible opportunity to also modify the way that we are doing things.”
“What is it that the [National Institutes of Health] can do to help accelerate research in this field so that we can truly understand what are the potentials, and ultimately the application, of interventions that are bought based on psychedelic drugs?” Volkow said.
The director separately told Marijuana Moment on Friday in an emailed statement that part of the challenge for the agency and researchers is the fact that psychedelics are strictly prohibited as Schedule I drugs under the federal Controlled Substances Act.
“Researchers must obtain a Schedule I registration which, unlike obtaining registrations for Schedule II substances (which include fentanyl, methamphetamine, and cocaine), is administratively challenging and time consuming,” she said. “This process may deter some scientists from conducting research on Schedule I drugs.”
“In response to concerns from researchers, NIDA is involved in interagency discussions to facilitate research on Schedule I substances,” Volkow said, adding that the agency is “pleased” the Drug Enforcement Administration recently announced plans to significantly increase the quota of certain psychedelic drugs to be produced for use in research.
“It will also be important to streamline the process of obtaining Schedule I registrations to further the science on these substances, including examining their therapeutic potential,” she said.
At Thursday’s event, the official talked about how recent, federally funded surveys showed that fewer college-aged adults are drinking alcohol and are instead opting for psychedelics and marijuana. She discussed the findings in an earlier interview with Marijuana Moment as well.
Don't miss out on the @NIDAnews, @NIAAAnews, & @NIMHgov-sponsored virtual Workshop on Psychedelics as Therapeutics: Gaps, Challenges, and Opportunities, Jan. 12‒13, 2022. Learn more and register: https://t.co/S1zttkoYXq pic.twitter.com/C2Qrk6FN9a
— NIDAnews (@NIDAnews) January 10, 2022
“Let’s learn from history,” she said. “Let’s see what we have learned from the marijuana experience.”
While studies have found that marijuana use among young people has generally remained stable or decreased amid the legalization movement, there has been an increase in cannabis consumption among adults, she said. And “this is likely to happen [with psychedelics] as more and more attention is placed on these psychedelic drugs.”
“I think, to a certain extent, with all the attention that the psychedelic drugs have attracted, the train has left the station and that people are going to start to use it,” Volkow said. “People are going to start to use it whether [the Food and Drug Administration] approves or not.
There are numerous states and localities where psychedelics reform is being explored and pursued both legislatively and through ballot initiative processes.
On Wednesday—during the first part of the two-day federal event that saw nearly 4,000 registrants across 21 time zones—NIMH Director Joshua Gordon stressed that his agency has “been supporting research on psychedelics for some time.”
Tune in today and tomorrow for the @NIH workshop on Psychedelics as Therapeutics, which will examine findings on psychoplastogens for treating depression, post-traumatic stress, and substance and alcohol use disorders. https://t.co/Qzxte5xJt9
— Joshua A. Gordon (@NIMHDirector) January 12, 2022
“We can think of NIMH’s interests in studying psychedelics both in terms of proving that they work and also in terms of demonstrating the mechanism by which they work,” he said. “NIMH has a range of different funding opportunity announcements and other expressions that are priorities aimed at a mechanistic focus and mechanistic approach to drug development.”
Meanwhile, Volkow also made connections between psychedelics and the federal response to the coronavirus pandemic. She said, for example, that survey data showing increased use of psychedelics “may be a way that people are using to try to escape” the situation.
But she also drew a metaphor, saying that just as how the pandemic “forced” federal health officials to accelerate the development and approval of COVID-19 vaccines because of the “urgency of the situation,” one could argue that “actually there is an urgency to bring treatments [such as emerging psychedelic medicines] for people that are suffering from severe mental illness which can be devastating.”
But as Volkow has pointed out, the Schedule I classification of these substances under federal law inhibits such research and development.
The official has also repeatedly highlighted and criticized the racial disparities in drug criminalization enforcement overall.