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.