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Federal Appeals Court Hears Marijuana Rescheduling Arguments In Case Against DEA

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Attorneys for a group of scientists and military veterans seeking to force the U.S. Drug Enforcement Administration (DEA) to formally reconsider marijuana’s restrictive federal classification made their case on Thursday to a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit.

Questions from judges, however, focused less on the challenge’s merits than the procedural questions it raises.

“This is a really odd case,” Judge William Fletcher said at the beginning of the oral arguments, which lasted roughly 30 minutes. While the lawsuit hinges on DEA’s rejection of a cannabis rescheduling petition last year, the judge noted, the veterans and researchers now suing DEA weren’t party to that petition.

“Your clients filed no petition. You appeal the denial of somebody else’s petition,” he said. “Somehow that doesn’t strike me as reasonable to allow somebody to come in this way, without themselves having filed a petition. To piggyback on the denial of such an odd, abbreviated petition just doesn’t fit with the way the administrative process is supposed to work.”

The lawsuit—filed last year by cannabis researcher Sue Sisley of the Scottsdale Research Institute, the Battlefield Foundation and veterans Lorenzo Sullivan and Gary Hess—centers largely on the DEA’s 2020 denial of a one-page cannabis rescheduling petition filed by a separate individual. In its response, the agency argued that marijuana has no currently accepted medical value.

Lawyers for the group are appealing that decision, asking the court to order DEA to initiate a formal rulemaking process, which would involve expert testimony and public comment. They say DEA’s summary dismissal of past rescheduling petitions has not only been unconstitutional but also prevented important research into the drug’s medical potential.

Matt Zorn, one of the lawyers for the petitioners, told Marijuana Moment on Friday that he is “pleased that we got our day in court.”

“All a litigant can ask for is the opportunity to brief their case and explain their case to the judges—and judges had legitimate concerns,” he said. “I thought we addressed those concerns, and I think we presented a real problem for them. Despite the quote-unquote odd procedural posture, I do think it’s proper.”

“Our hope is that the panel reaches the merits, because there frankly really isn’t that much dispute that what’s going on here is wrong,” he added. “That’s the bottom line takeaway. Nobody’s really disputing that the agency’s interpretation of ‘no currently accepted medical use’ is wrong. What we’re arguing about whether or not we should be the ones to bring it to a court’s attention.”

At the arguments on Thursday, Zorn told the judges that it is “a well-established principle of administrative law that even if you miss the notice and comment period, you might have the ability to come in and challenge a rule.”

“The fact of the matter is these petitions generally take a really long time. This is a pure legal issue. It’s ripe for decision… My clients are suffering injuries from the failure to engage in rulemaking,” he said.

The plaintiffs initially filed their lawsuit, Sisley v. DEA, against the federal agency in May of last year, contending that DEA’s justification for maintaining a Schedule I status for cannabis violates the Constitution on numerous grounds. DEA attempted to dismiss the case, but the Ninth Circuit rejected that request in August.

During oral arguments, Zorn pointed to a number of cases as precedent to justify why his clients should be allowed to challenge DEA’s denial of the petition, most notably Massachusetts v. EPA, in which that state challenged the denial of a petition filed by another party. But judges pointed out that no case he cited clearly states who can and can’t rightfully appeal such an agency decision.

“Neither side is really citing case law that is directly on point here,” Zorn acknowledged. “I have not found any statute that is anything like this.”

Justice Department lawyer Daniel Aguilar, who represented the federal government at the oral argument, insisted that the court should dismiss the case and allow the group to file their own DEA rescheduling petition.

But the Ninth Circuit judges were similarly skeptical of the government’s stance. Aguilar argued that in Massachusetts v. EPA, for example, Massachusetts was allowed to appeal a denial of a petition it wasn’t a party to because of its special status as a U.S. state. To back up his position, he pointed to part of an opinion by Supreme Court Justice Anthony Kennedy.

Judge Fletcher, however, seemed to correct Aguilar on his interpretation. “The sovereign stuff that Justice Kennedy writes in that opinion goes entirely to whether or not it has a cognizable injury,” he said. “It really is not talking about whether or not Massachusetts has the right to appeal the denial of somebody else’s petition.”

The Ninth Circuit panel also included Judges Paul Watford and Daniel Collins.

Separate from the issue of standing, lawyers for the scientists and veterans have have raised questions about DEA’s reliance on scheduling standards that they feel are arbitrary and misinterpret federal law. To support that claim, they pointed to a federal memo from 1972.

The Bureau of Narcotics and Dangerous Drugs, a predecessor to DEA, sent a letter to the White House replying to a rescheduling petition to NORML, wherein it similarly referenced statutory obligations to maintain the existing schedule, rather than argue the merits.

“We concluded that the only alternative was to reject the petition,” the letter states. “The Attorney General simply has no powers to grant the petitioner’s request.”

Petitioners in the case also argue that government’s practice of granting the attorney general authority to schedule drugs based on his or her interpretation of international treaty obligations constitutes an “unconstitutional delegation of legislative authority.”

When the World Health Organization (WHO) schedules drugs under international treaties, Zorn argued, “the United States automatically has to do the same thing. The attorney general has no choice.”

The arrangement unconstitutionally vests power in WHO and the attorney general’s office, he said, rather than keeping it with Congress.

Sisley, the lawsuit’s lead plaintiff and president of the Scottsdale Research Institute (SRI), is a DEA-licensed researcher focused on investigating the therapeutic potential of cannabis for veterans. She’s sought to become a federally authorized marijuana manufacturer so that her facility can produce higher quality products for studies.

SRI has already taken the feds to court over past marijuana decisions, with results to show for it. The institute successfully forced DEA to issue an update on the status of their application processing and then got the Justice Department to hand over a “secret” memo that DEA allegedly used to justify a delay in deciding those proposals.

“What has been animating all of these lawsuits is that we can’t get the research done,” Zorn told Marijuana Moment last year, shortly after the current challenge was filed in district court. “The ideal result is that we stop filing lawsuits and the administration decides it wants to support cannabis research. But until that happens, we’ll be in the courts.”

Last month, Sisley and SRI received preliminary approval from DEA to be one of the first new federally authorized cultivators of cannabis for research.

Bill To Let Researchers Study Marijuana From Dispensaries Approved In Congressional Committee

Photo elements courtesy of rawpixel and Philip Steffan.

 

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.

Ben Adlin is a Seattle-based writer and editor. He has covered cannabis as a journalist since 2011, most recently as a senior news editor for Leafly.

Politics

Bipartisan Pennsylvania Senators File Bill To Let Medical Marijuana Patients Grow Their Own Plants

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A bipartisan group of Pennsylvania senators introduced a bill on Thursday that would allow medical marijuana patients to cultivate their own plants for personal use.

Sens. Dan Laughlin (R) and Sharif Street (D) first announced their intent to file the legislation in November, arguing that it is a necessary reform to ensure patient access by giving people a less costly alternative to buying from dispensaries.

Registered patients who are 21 and older, and who have been residents of the state for at least 30 days, could grow up to six plants in an “enclosed and locked space” at their residence, according to the text of the bill. They would be allowed to buy cannabis seeds from licensed dispensaries

 

In an earlier cosponsorship memo for the new home grow bill, the lawmakers said that letting patients cultivate their own medicine would “help ease the cost and accessibility burdens for this important medicine.”

The new legislation has three other initial cosponsors in addition to Street and Laughlin.

Street had attempted to get the reform enacted as an amendment to an omnibus bill this summer, but it did not advance.

The senators argue that patients in particular are deserving of a home grow option, as some must currently travel hours to visit a licensed dispensary and there are financial burdens that could be alleviated if patients could grow their own plants for medicine.

Late last year, Laughlin and Street also unveiled a separate adult-use legalization proposal that faces significant challenges in the GOP-controlled legislature. And Street is behind another recent cannabis measure to provide state-level protections to banks and insurers that work with cannabis businesses.


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.

Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.

In the interim, Lt. Gov. John Fetterman (D), who is running for U.S. Senate this year, said one of his key goals in his final year in office is to ensure that as many eligible people as possible submit applications to have the courts remove their cannabis records and restore opportunities to things like housing, student financial aid and employment through an expedited petition program.

Pennsylvania lawmakers could also take up more modest marijuana reform proposals like a bill filed late last year to expand the number of medical marijuana cultivators in the state, prioritizing small farms to break up what she characterized as a monopoly or large corporations that’s created supply problems.

Rep. Amen Brown (D) separately announced his intent to file a legalization bill that he’ll be working on with Sen. Mike Regan (R), who expressed his support for the policy change a day earlier.

Additionally, another pair of state lawmakers—Reps. Jake Wheatley (D) and Dan Frankel (D)—formally unveiled a legalization bill they’re proposing last year.

Philadelphia voters also approved a referendum on marijuana legalization in November that adds a section to the city charter saying that “the citizens of Philadelphia call upon the Pennsylvania General Assembly and the Governor to pass legislation that will decriminalize, regulate, and tax the use, and sale to adults aged 21 years or older, of cannabis for non-medical purposes.”

Gov. Tom Wolf (D) said last year that marijuana legalization was a priority as he negotiated the annual budget with lawmakers. However, his formal spending request didn’t contain legislative language to actually accomplish the cannabis policy change.

The governor, who signed a medical cannabis expansion bill in June, has repeatedly called for legalization and pressured the Republican-controlled legislature to pursue the reform since coming out in favor of the policy in 2019. Shortly after he did that, a lawmaker filed a separate bill to legalize marijuana through a state-run model.

A survey from Franklin & Marshall College released last year found that 60 percent of Pennsylvania voters back adult-use legalization. That’s the highest level of support for the issue since the firm started polling people about it in 2006.

An attempt to provide protections for Pennsylvania medical marijuana patients from being charged with driving under the influence was derailed in the legislature last year, apparently due to pushback by the state police association.

Nebraska Activists Say New GOP Medical Marijuana Bill Is A ‘Poison Pill’ Meant To Detract From Ballot Efforts

Photo courtesy of Mike Latimer.

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Minnesota Democratic Leaders Preview Marijuana Legalization Plan For 2022

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Minnesota Democratic leaders are preparing for another push to legalize marijuana this session, with the sponsor of the House-passed reform bill saying he will be reworking the legislation in an effort to build further support—though it continues to face an uphill climb in the GOP-controlled Senate.

House Majority Leader Ryan Winkler (D) and Senate Minority Leader Melisa Franzen (D) discussed the legislative strategy during a roundtable event hosted by the Minnesota Hemp Growers Cooperative on Wednesday.

Winkler said that his bill, which moved through 12 committees before being approved on the House floor last year, is the “product of hundreds of hours of work involving thousands of people’s input, countless hearings and public listening sessions—but it is not a perfect bill.”

“As we look ahead to this session…our goal is to go back and reexamine provisions of the bill,” he said. Licensing structures, public safety and substance misuse concerns are among the issues that lawmakers will be looking at to improve upon the legislation.

“We will be working with our colleagues in the Minnesota Senate,” Winkler added. “We’re interested in pursuing legalization to make sure that the bill represents senators’ priorities for legalization as well.”

The leader said that “any effort this year that would be successful would require Republican support as well.”

But while advocates are encouraged to hear that the House may again vote to pass the legalization legislation, the Senate minority leader tempered expectations about the bill’s prospects in her Republican-run chamber.

“Unfortunately, I don’t think there’s a path to legalization this year in the Minnesota Senate,” Franzen said. “It’s controlled by the Republican party, and they have there’s a few members who are really adamantly opposed to legalization.”

Gov. Tim Walz (D) is supportive of cannabis legalization, and while the broad reform didn’t advance last session, he did sign a bill to expand the state’s medical marijuana program, in part by allowing patients to access smokable cannabis products.

Winkler said on Wednesday that “it was because of the work done” by advocates on legalization that put pressure on Senate Republicans to advance that legislation.

Another cannabis issue playing out in Minnesota concerns CBD. The state agriculture department and pharmacy board have increased enforcement against the sale of the non-intoxicating cannabinoid in recent months, prompting calls for legislative reform.

Winkler said that the political dynamics around legalization that led to the expansion of the state’s medical cannabis program will be “a template for how we will address challenges with CBD this year.”

“My staff is working very closely with advocates, working with senators, working with other House members to get in a repair for the CBD industry, and I have every confidence that we will be able to do that with your help,” he said.

A poll conducted by Minnesota lawmakers that was released last year found that 58 percent of residents are in favor of legalization. That’s a modest increase compared to the chamber’s 2019 survey, which showed 56 percent support.

Winkler said in 2020 that if Senate Republicans don’t go along with the policy change legislatively, he hopes they will at least let voters decide on cannabis as a 2022 ballot measure.

Rhode Island Governor Includes Marijuana Legalization And Expungements In Budget Request

Photo courtesy of Philip Steffan.

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Nebraska Activists Say New GOP Medical Marijuana Bill Is A ‘Poison Pill’ Meant To Detract From Ballot Efforts

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A Republican Nebraska senator introduced a bill on Thursday that ostensibly seeks to legalize medical marijuana in the state—but activists have raised concerns that the restrictive measure may be an attempt to subvert an effort to pass even broader patient protections on the 2022 ballot.

Sen. Mike Groene (R) filed the legislation, which would allow certain patients to buy and possess cannabis oils, pills and up to two and a half ounces of flower at a limited number of dispensaries. Smoking or inhaling marijuana would be banned, however, as would making edibles—so it’s not clear how patients would consume the flower they could possess.

But the main problem is, the bill would maintain that cultivating marijuana in Nebraska for commercial or personal use is illegal, meaning dispensaries wouldn’t even have a legal means of obtaining cannabis products for patients.

The bill is also severely restrictive in terms of who would qualify for cannabis. It would only permit access to people with stage IV cancer, uncontrolled seizures, severe muscle spasms caused by multiple sclerosis or muscular dystrophy or a terminal illness with less than a one year probable life expectancy.

It’s being backed by the Nebraska chapter of the prohibitionist group Smart Approaches to Marijuana (SAM), leading some advocates to suspect that the lack of cultivation provisions is designed to be a “poison pill” while misleading voters into thinking that there is a good faith effort to legalize medical cannabis legislatively.

“This appears to be a political stunt,” Jared Moffat, state campaigns manager at the Marijuana Policy Project, said in a press release. “Opponents of medical cannabis know there is a viable campaign to put medical cannabis on the ballot, and they know Nebraskans will overwhelmingly support that effort.”

“This is an attempt to take our focus away from that,” he said. “But it won’t succeed because it’s clear that this proposal is not a good faith effort to find some middle ground on the issue.”

The bill comes as Nebraskans for Medical Marijuana (NMM) continues to work to collect signatures for a pair of medical cannabis legalization initiatives that advocates hope to place on the November ballot. They have until July to collect 87,000 valid signatures to qualify each of their complementary measures.

Activists with the group collected enough signatures to qualify a medical marijuana legalization measure for the 2020 ballot, but the state Supreme Court invalidated it, finding that the proposal violated the single-subject rule for citizen initiatives.


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.

Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.

Now this legislation from Groene is entering the mix for the 2022 session. And SAM Nebraska co-chair John Kuehn told The Lincoln Journal-Star that it’s “a good faith effort and we are willing to look at this as an acceptable alternative to creating a marijuana industry in the state of Nebraska.”

While advocates aren’t necessarily buying that argument given that it would authorize dispensaries without providing the ability to cultivate marijuana products, some like NMM co-chair Sen. Anna Wishart (D) are willing to work with the senator to get the bill into a more acceptable shape for patients.

“It would be the status quo,” Wishart said. “I want a safe system, but there are practical realities patients are living with every day. No one wants a system that doesn’t work.”

Notably, Groene did support a procedural motion to advance Wishart’s more expansive medical cannabis bill last session.

Jane Kleeb, chair of the Nebraska Democrats, pounced on the restrictive nature of Groene’s bill and said it makes it “not easy or feasible for most” to obtain a medical cannabis recommendation from a doctor.

Shari Lawlor, a member of Nebraska Families for Medical Cannabis, said that the group is “grateful that Sen. Groene recognizes the importance of medical cannabis,” but as drafted, “this is a medical cannabis bill with no cannabis.”

“It envisions a system with dispensaries but no farmers or cultivators who actually produce the medical cannabis that patients need,” she said. “And since patients are not allowed to cultivate medical cannabis themselves under this proposal, there is effectively no way for patients to get the relief they need.”

Gov. Pete Ricketts (R) is no fan of legalization. He partnered with SAM Nebraska on a recent ad urging residents to oppose cannabis reform in the state. Given the organization’s support for this new GOP proposal, there’s some suspicion that he might back it to give the appearance that the administration isn’t deaf to calls for reform by voters.

Advocates aren’t going to be deterred by the bill’s introduction. They will be moving forward with the complementary medical cannabis initiatives in hopes to getting the issue to voters.

The campaign deliberately chose to take a bifurcated approach because of the state Supreme Court invalidation over the single-subject rule.

One of the statutory initiatives would establish legal protections for patients and doctors around cannabis, while the other would allow private companies to produce and sell medical marijuana products.

Lawmakers attempted to advance medical cannabis reform legislatively last year, but while the unicameral legislature debated a bill to legalize medical marijuana in May, it failed to advance past a filibuster because the body didn’t have enough votes to overcome it.

Wishart and NMM co-chair Sen. Adam Morfeld (D) announced in late 2020 that they would also work to put the question of legalizing marijuana for adult use before voters in 2022. But for now their focus appears to be on the medical cannabis effort.

For what it’s worth, Nebraska’s attorney general argued in an opinion in 2019 that efforts to legalize medical marijuana legislatively in the state would be preempted by federal law and “would be, therefore, unconstitutional.”

Rhode Island Governor Includes Marijuana Legalization And Expungements In Budget Request

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.
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