Lawyers representing a group of scientists and military veterans filed a comprehensive brief in federal court this week, outlining their case challenging decisions about the classification of marijuana made by the Drug Enforcement Administration (DEA).
The plaintiffs initially filed their lawsuit against the federal agency in May, contending that DEA’s justification for maintaining a Schedule I status for cannabis is unconstitutional. DEA attempted to quash the case by filing a motion to dismiss, but the U.S. Court of Appeals for the Ninth Circuit rejected that request in August.
On Tuesday, the attorneys filed the petitioners’ brief to officially set the case in motion. The 117-page document goes over background information on marijuana’s scheduling and past requests to reclassify the plant. It also makes the legal argument that DEA’s justification for maintaining its strict prohibition on cannabis is unconstitutional.
The lawsuit—brought by plaintiffs including Sue Sisley of the Scottsdale Research Institute, the Battlefield Foundation and military veterans Lorenzo Sullivan and Gary Hess— focuses primarily on DEA’s denial of a petition to reschedule marijuana earlier this year. In that case, the petitioner argued that the agency’s claim that cannabis has no currently accepted medical value is invalid given that a majority of states have legalized the plant for therapeutic purposes.
“Can DEA deny that marijuana has a ‘currently accepted medical use in treatment in the United States’ when more than two-thirds of the States have enacted legislation greenlighting marijuana’s use as medicine?” the newly filed briefing asks. “The unambiguous text of [federal statute], canons of construction, the [Controlled Substances Act’s] history and purpose, and common sense all converge on a single, resounding answer: ‘No.'”
The plaintiffs make a second legal argument that’s more nuanced. They say that DEA’s insistence that cannabis must be placed in either Schedule I or Schedule II is unconstitutional because it “delegates legislative power twice: first to a non-governmental entity and second to the Attorney General.” The “non-governmental entity” is a reference to international treaties that the agency has cited as restricting its authority to reschedule cannabis.
In order to provide relief, the attorneys want the court to mandate that DEA take three steps: First, it should initiate a rulemaking process on rescheduling. Next, it should complete the rulemaking within a year of the court’s order. Finally, it should make sure that any scheduling decision is consistent with a statute that the attorneys say prevents DEA from “denying that marijuana has a currently accepted medical use in the face of widespread State acceptance.”
Initially, DEA was supposed to file its response to the new brief by October 29, but the court granted an extension so the agency will have until late November.
Matt Zorn and Shane Pennington, attorneys for the plaintiffs, told Marijuana Moment that getting DEA to initiate formal rulemaking would open the floodgates, enabling experts and stakeholders to lay out the abundance of scientific and legal literature that contradicts the rationale behind placing cannabis in Schedule I.
And if the court agrees with their argument challenging DEA’s stance on marijuana’s medical value, they see no scenario where the plant could still be kept in either Schedule I or moved slightly down the list to Schedule II.
Zorn said that what they’re essentially asking DEA to do is “to take prompt action to reconsider the petition under the right interpretation of the statute.”
“If they do that—because the right interpretation of the statute necessarily means that state acceptance is currently accepted medical use—on remand they won’t be able to deny the petition, at least for the reasons that they said,” he said. “And they won’t ever be able to say again that marijuana has no currently accepted medical use when the vast majority of the states say otherwise.”
This isn’t the first time that this group of scientists has taken the feds to court over their marijuana decisions.
The plaintiffs were also successful in forcing DEA to issue an update on the status of applications to become federally authorized cannabis manufacturers for research purposes and then got the Justice Department to hand over a “secret” memo that DEA allegedly used to justify a delay in deciding on those proposals.
Meanwhile, DEA could also become involved in a separate U.S. Supreme Court case challenging its marijuana scheduling actions.
In a petition filed in July and formally docketed for a private conference at the high court next week, a coalition of patients and advocates asked the justices to take up their case challenging the constitutionality of federal cannabis prohibition. This comes after a series of rulings in lower courts since the original lawsuit was filed in 2017.
Seven members of Congress and a slew of marijuana reform groups submitted legal documents last month urging the court to take up the case.
Separately, a federal court recently ruled that California regulators must comply with a DEA subpoena demanding information about marijuana businesses that they are investigating.
Read the latest briefing in the federal marijuana lawsuit against DEA below:
Congressional Bill Filed To Protect Marijuana Consumers From Losing Public Housing
A congresswoman on Thursday reintroduced a bill that would allow people living in federally assisted housing to use marijuana in compliance with state law without fear of losing their homes.
As it stands, people living in public housing are prohibited from using controlled substances in those facilities regardless of state law, and landlords are able to evict such individuals. But the bill from Rep. Eleanor Holmes Norton (D-DC) would change that.
It would provide protections for people living in public housing or Section 8 housing from being displaced simply for using cannabis in states that have legalized it for medical or recreational purposes.
“Individuals living in federally assisted housing should not be denied admission, or fear eviction, for using a legal product,” Norton said on Thursday. “Adult use and/or medical marijuana is currently legal in 36 states and the District of Columbia, and over 90 percent of Americans support legalized medical marijuana.”
The legislation would also require the head of the Department of Housing and Urban Development (HUD) to enact regulations that restrict smoking marijuana at these properties in the same way that tobacco is handled.
“HUD, like DOJ, should not be allowed to enforce federal marijuana laws where states have taken action to legalize marijuana,” the congresswoman said, referring to a congressionally approved rider that prevents the Department of Justice from interfering with state medical cannabis laws.
Norton filed earlier versions of the Marijuana in Federally Assisted Housing Parity Act in 2018 and 2019, but they did not receive hearings or votes.
In 2018, a Trump administration official said that she was working to resolve conflicting federal and state marijuana laws as it applies to residency in federally-subsidized housing, but it’s not clear what came of that effort.
Rep. Alexandria Ocasio-Cortez (D-NY) also raised the issue during a committee hearing in 2019, pressing former HUD Secretary Ben Carson on policies that cause public housing residents and their families to be evicted for committing low-level offenses such as marijuana possession.
She pointed to two specific HUD policies: the “one strike” rule, which allows property managers to evict people living in federally assisted housing if they engage in illicit drug use or other crimes, and the “no fault” rule, which stipulates that public housing residents can be evicted due to illicit drug use by other members of their household or guests—even if the resident was unaware of the activity.
Ocasio-Cortez and then-Sen. Kamala Harris (D-CA) also filed legislation that year that would protect people with low-level drug convictions from being denied access to or being evicted from public housing.
Sen. Jeff Merkley (D-OR) also introduced an affordable housing bill last year that included a provision to prevent landlords from evicting people over manufacturing marijuana extracts if they have a license to do so.
Read the text of the marijuana housing legislation below:
Photo courtesy of Martin Alonso.
FDA Clears Researchers To Study MDMA Use By Therapists Being Trained In Psychedelic Medicine
The Food and Drug Administration (FDA) has already authorized clinical trials into the therapeutic potential of MDMA for patients with post-traumatic stress disorders—but now it’s given the green light to a psychedelics research institute to expand its studies by administering the substance to certain therapists.
Volunteer therapists who are being trained to treat people with PTSD will be able to participate in the Phase 1 trials to gain personal experience with the treatment option. This is a complementary research project that comes as the Multidisciplinary Association for Psychedelic Studies (MAPS) is in the process of conducting Phase 3 trials involving people with the disorder.
The development comes months after Canadian regulators announced that certain therapists would be allowed to take psilocybin in order to gain a better understanding of the psychedelic when treating patients.
MAPS sought permission to proceed with the therapist-specific trials in 2019, but FDA placed them on a 20-month hold because of concerns about the merits, risks and credentials of investigators. MAPS appealed that hold, providing evidence about the study’s scientific value and ability of its staff, and FDA cleared them on Tuesday.
— MAPS (@MAPS) May 13, 2021
The organization “chose to dispute” FDA’s hold not just because of the impact it had on the planned studies, “but in an attempt to resolve an ongoing issue with the FDA regarding investigator qualifications across studies,” it said in a press release on Wednesday.
“While the term ‘dispute’ may seem adversarial, this process can actually strengthen the relationship and trust between us and our review Division and ensures the Division has support on this project from the [FDA] Office of Neuroscience,” MAPS Public Benefit Corporation (PBC) CEO Amy Emerson said. “This decision demonstrates how our strategic, data-driven strategy in challenging the FDA rulings can be successful.”
Now MAPS is able to launch the Phase 1 clinical trials into MDMA-assisted therapy for therapists.
It will be designed to “measure development of self-compassion, professional quality of life, and professional burnout among clinicians delivering the treatment to patients,” the association said.
Getting personal experience with the substance “is widely considered to be an important element in preparation and training to deliver psychedelic-assisted therapies.”
This will “support the goals of the MDMA Therapy Training Program to provide comprehensive training to future providers,” and it “builds capacity to deliver quality, accessible care to patients, pending approval of MDMA-assisted therapy as a legal prescription treatment,” MAPS PBC Director and Head of Training and Supervision Shannon Carlin said.
FDA first granted MAPS’s request for an emergency use authorization for MDMA in PTSD in 2017. The organization expects to complete its Phase 3 trails in 2022.
The scientific expansion move also comes as the psychedelics decriminalization movement continues to build in the U.S.
Missouri Regulators Derail Medical Marijuana Business Ownership Disclosure Effort With Veto Threat
Missouri regulators say they feel requiring medical marijuana business license ownership disclosures under a House-approved amendment could be unconstitutional, and they may urge the governor to veto the legislation.
By Jason Hancock, Missouri Independent
An effort by lawmakers to require disclosure of ownership information for businesses granted medical marijuana licenses was derailed on Thursday, when state regulators suggested a possible gubernatorial veto.
On Tuesday, the Missouri House voted to require the Department of Health and Senior Services provide legislative oversight committees with records regarding who owns the businesses licensed to grow, transport and sell medical marijuana.
The provision was added as an amendment to another bill pertaining to nonprofit organizations.
Its sponsor, Rep. Peter Merideth, D-St. Louis, said DHSS’s decision to deem ownership records confidential has caused problems in providing oversight of the program. He pointed to recent analysis by The Independent and The Missourian of the 192 dispensary licenses issued by the state that found several instances where a single entity was connected to more than five dispensary licenses.
The state constitution prohibits the state from issuing more than five dispensary licenses to any entity under substantially common control, ownership or management.
On Thursday, a conference committee met to work out differences in the underlying bill between the House and Senate.
Sen. Eric Burlison, a Republican from Battlefield and the bill’s sponsor, called the medical marijuana amendment an “awesome idea. I think it’s awesome.”
However, he said opposition from the department puts the entire bill in jeopardy.
“The department came to me,” he said, “and said they felt that this was unconstitutional.”
DHSS has justified withholding information from public disclosure by pointing to a portion of the medical marijuana constitutional amendment adopted by voters in 2018 that says the department shall “maintain the confidentiality of reports or other information obtained from an applicant or licensee containing any individualized data, information, or records related to the licensee or its operation… .”
Alex Tuttle, a lobbyist for DHSS, said if the bill were to pass with the medical marijuana amendment still attached, the department may recommend Gov. Mike Parson veto it.
The threat of a veto proved persuasive, as several members of the conference committee expressed apprehension about the idea of the amendment sinking the entire bill.
Merideth said the department’s conclusion is incorrect. And besides, he said, the amendment is narrowly tailored so that the information wouldn’t be made public. It would only be turned over to legislative oversight committees.
Rep. Jered Taylor, R-Republic, chairman of the special committee on government oversight, said the amendment is essential to ensure state regulators “are following the constitution, that they’re doing what they’re supposed to be doing.”
The medical marijuana program has faced intense scrutiny in the two years since it was created by voters.
A House committee spent months looking into widespread reports of irregularities in how license applications were scored and allegations of conflicts of interest within DHSS and a private company hired to score applications.
In November 2019, DHSS received a grand jury subpoena, which was issued by the United States District Court for the Western District. It demanded the agency turn over all records pertaining to four medical marijuana license applications.
The copy of the subpoena that was made public redacted the identity of the four applicants at the request of the FBI. Lyndall Fraker, director of medical marijuana regulation, later said during a deposition that the subpoena wasn’t directed at the department but rather was connected to an FBI investigation center in Independence.
More recently, Parson faced criticism for a fundraiser with medical marijuana business owners for his political action committee, Uniting Missouri.
The group reported raising $45,000 in large donations from the fundraiser. More than half of that money came from a PAC connected to Steve Tilley, a lobbyist with numerous medical marijuana clients who has been under FBI scrutiny for more than a year.