Politics
DEA Is Rejecting Medical Marijuana Businesses That Want Federal Rescheduling Protections In Multiple States
The Drug Enforcement Administration (DEA) has rejected applications for federal registration and protections to medical marijuana businesses in at least six states and Washington, D.C., Marijuana Moment has learned.
While it became publicly known late last month that the agency had approved more than 900 applicants across seven states under the Trump administration’s cannabis rescheduling move and had rejected those in Minnesota due to certain provisions of that state’s laws, sources have told Marijuana Moment that DEA has also sent so-called orders to show cause to at least some businesses in California, Delaware, the District of Columbia, Illinois, North Dakota and Oregon.
Although the documents differ from state to state, there are similarities, according to industry sources who have reviewed the orders, the text of some of which have been shared with Marijuana Moment.
For example, the DEA orders generally cite some of the states’ allowance of businesses to sell non-medical marijuana as a violation of the Controlled Substances Act’s (CSA) “closed system” for medical access to scheduled drugs and of the U.S.’s international treaty obligations.
Some of the documents also single out state laws that allow certain patients to access medical cannabis without a doctor’s written recommendation.
An order sent to a California business, notably, says that patients who apply for a medical marijuana identification card in the state “are not required to obtain or provide a physician’s recommendation for marijuana.”
“Rather, California law requires the applicant only provide ‘[w]ritten documentation by the attending physician in the person’s medical records stating that the person has been diagnosed with a serious medical condition and that the medicinal use of cannabis is appropriate,'” the DEA order says.
“While California provides state form CDPH 9044, ‘Written Documentation of Patient’s Medical Records Form,’ that form is marked: ‘This is not a mandatory form.’
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DEA similarly cannot register any medical marijuana dispensary operating under California’s state law regime because California permits dispensing without a written certification. As noted, a California dispensary may dispense medical marijuana to patients who provide written documentation from the attending physician from their medical records, stating the patient has been diagnosed with a serious medical condition and the use of medical cannabis is appropriate. CAL. HEALTH & SAFETY CODE § 11362.715. No written certification, as described under 21 C.F.R. § 1301.13(k)(5), is required.”
DEA claims that the state policy “violates the United States’ treaty obligations under the Single Convention, which mandates the use of ‘medical prescriptions’ when dispensing controlled substances”—saying that the “conflict is untenable, as federal treaties are supreme and take precedence over state laws.”
The California law, the agency says, also violates requirements under federal regulations adopted this year in line with rescheduling that say that certifications or documents issued in accordance with state laws for patients to access medical cannabis will be deemed sufficient for federal prescription purposes as long as certain requirements are met.
Those include ensuring that the certification or other document is “dated as of, and signed on, the day when issued; bears the full name and address of the user; and contains the name, address, and state license number of the practitioner who signed the certification or other document and is authorized to do so under state law.”
“Dispensing medical marijuana without a written, signed certification also violates the requirements under 21 C.F.R. § 1301.13(k)(5),” the DEA order to the California business says, referring to the federal regulation adopted in line with rescheduling.
A separate show cause order sent to an Illinois business, like the previously known one from Minnesota, says the state’s law that allows businesses to participate in both the medical and recreational marijuana markets “fails to provide ‘robust protections’ against diversion, as non-medical use of marijuana remains prohibited under federal law.”
“Based on such deficiencies, DEA cannot permit any applicant under the State of Illinois’s regime access to the federal CSA’s closed system when the State of Illinois issues licenses that authorize diversionary non-medical dispensing as well as medical dispensing,” it says. “For DEA to sanction or bestow the imprimatur of legitimacy upon such conduct by granting a registration would be inconsistent with the CSA as well as United States’ treaty obligations under the Single Convention.”
Also like the Minnesota document, the Illinois order cites that state’s law allowing military veterans to qualify for medical cannabis access without a doctor’s written certification.
“As noted, an Illinois dispensary may dispense medical marijuana to veterans who submit one year of their ‘official medical records requested from the VA,'” it says, arguing that the practice violates international drug treaties and the CSA.
MJBizDaily also recently reported on a DEA order to a business in Washington, D.C. that cites the city’s policy of allowing patients to self-certify as having a qualifying medical condition without the need for a doctor’s recommendation.
“DEA cannot register any medical marijuana dispensary operating under the District of Columbia’s regime because the District of Columbia permits dispensing without a written certification,” the order says, the outlet reported. “Such dispensing violates the United States’ treaty obligations under the Single Convention, which mandates the use of ‘medical prescriptions’ when dispensing controlled substances.”
Attorney General Todd Blanche in April issued an order that immediately reclassified state-licensed medical cannabis, as well as marijuana products approved by the Food and Drug Administration (FDA) from Schedule I of the Controlled Substances Act (CSA) to Schedule III.
A DEA judge is considering a proposal to move non-medical marijuana to Schedule III as well after overseeing a hearing that included testimony and briefs. It is not clear when he will issue his recommendation to the agency’s administrator.
Meanwhile, DEA released guidance last month warning that medical marijuana businesses that want to receive federal registration and protections under rescheduling have until late November to begin sourcing cannabis only from and to other companies that have also been granted or applied for registration in a timely fashion.
