Introduction to Marijuana Rescheduling

By Jon Gettman Ph.D.


Why is marijuana illegal? The government claims that scientific evidence justifies marijuana prohibition. But does it?

The law provides standards for deciding if a drug is dangerous enough to be prohibited under the Controlled Substances Act. There have been three attempts to reschedule marijuana under existing federal law. The first was begun by the National Organization for the Reform of Marijuana Laws (NORML) in 1972 and concluded with an unfavorable court decision, ACT v. DEA, in 1994. The second attempt took place from 1995 to 2002 and is described below. A third rescheduling petition was filed in 2002 and is currently under review. The story of the second rescheduling petition follows below as an introduction to the current 2002 Cannabis Rescheduling Petition.

On July 10th 1995 I filed a petition with the Drug Enforcement Administration (DEA) to remove marijuana and THC from schedule I of the Controlled Substances Act because neither had the high potential for abuse required under the law for this prohibited status. This petition was a 275 page (double spaced) review of relevant scientific evidence. High Times magazine immediately joined my effort and helped secure the legal counsel of the law offices of Michael Kennedy.

On March 20th 2001 the DEA formally responded by denying the petition and providing a 120 page (single spaced) review of scientific relevance. The law provides for two reviews of the evidence cited in the petition. The first was delegated by the Department of Health and Human Services to the Food and Drug Administration. The second consists of additional information.

In order for Marijuana Prohibition to continue in the United States the federal government must prove that marijuana and THC, its psychoactive ingredient, have a high potential for abuse similar to that of cocaine or heroin. This has been the law since 1970 when the Controlled Substances Act (CSA) was enacted by Congress. However the scientific evidence about marijuana changed dramatically after the 1988 discovery of a receptor system in the brain that was responsible for producing THC's characteristic effects. As a result of a rescheduling petition filed in 1995 the FDA conducted a medical and scientific evaluation of marijuana and THC, in part because of all the new information that emerged after the receptor discovery.

The issue is not whether or not marijuana has an abuse potential, but instead how its abuse potential compares to other controlled substances. Advocates of marijuana law reform and their opponents are quick to provide numerous citations of scientific articles that support their respective claims and arguments. Important standards for evaluating scientific research and, in the context of the Controlled Substances Act, its legal significance are frequently ignored or overlooked in public discourse over marijuana laws and policy. What follows below is an introduction to the scientific and legal issues and a chronological narrative about the process leading up to and following the filing of the petition.

A Quick Guide to Marijuana Prohibition provides easy access to the legal basis for the 1995 rescheduling petition, including a list of the legally binding scientific standards that provide the structure for the rescheduling petition and HHS evaluations of marijuana. A Quick Guide to the pre-1997 Scientific Literature provides easy access to journal article excerpts that support eleven straightforward assertions about the contemporary scientific record in the mid 1990s, including why prior research findings on marijuana were flawed and discredited. These scientific findings in this legal context resulted in the 1995 rescheduling petition and the current proceedings. They address a central problem with some scheduling decisions under the CSA. Substances with different pharmacological properties are grouped together with no scientific evidence to support similar treatment under the law. Leo Hollister noted this before a Congressional committee in 1970 prior to passage of the CSA. A critique of the clash between pharmacology and scheduling is cited in the petition. Instead of relying on pharmacology, for example, Congress provided a very general explanation of what they meant by abuse potential in the legislative history of these sections of the CSA. However in the legislative history they also closely tied scheduling decisions to contemporary scientific standards. The first attempt to have marijuana rescheduled eventually became focused solely on whether marijuana had an accepted medical use in the United States. Unlike the first proceedings the 1995 rescheduling petition hinges on whether marijuana's abuse potential is significant enough to justify its current Schedule I status. In this respect the 1995 petition goes to the heart of the issue Hollister raised before Congress in 1970 -- whether scientific evidence will support the integrity of CSA scheduling of heroin, LSD and marijuana in the same schedules, and whether marihuana prohibition can be perpetuated given rapid social change in its use.

As President of NORML during a key stage of the previous rescheduling proceedings (November 1986 to April 1989) I was familiar with the CSA and the laws concerning rescheduling. In March 1994 I came across a report by the Congressional Office of Technology Assessment (OTA) on The Biological Components of Substance Abuse and Addiction. From reading it I understood that a scientific revolution had taken place in the evaluation of the dependence liabilities and abuse potentials for drugs, and that new standards of evaluation had been adopted by the scientific community. I also understood from reading this report that a revolution had also occurred in scientific knowledge about marijuana, and that under the new standards for evaluating abuse potential it would be hard to prove that marijuana had a similar abuse potential as heroin and/or cocaine. I realized that recent discoveries about the cannabinoid receptor system could be used to require the United States government to end marijuana prohibition. The next challenge was getting the U.S. government to understand and agree to this.

I began by reading every article on marijuana cited in the OTA report, and followed up by reading the articles frequently cited in those articles. I sought to learn about the body of literature that was recognized by professionals as setting the standards for their field and to learn of the relevance of new findings in that overall context. Meanwhile in October 1994 I began to sound out the government as to what they thought about my assertion that they were required to begin new marijuana rescheduling proceedings. This effort is documented in the Prologue. First I wrote the Attorney General and suggested that the Department of Justice initiate proceedings. My letter was sent to DEA and I was sent a form letter in reply. This wasn't acceptable so I wrote my congressman and one of my Senators, who passed my letter on to DEA for a response. DEA explained, in so many words, that they won the last rescheduling proceedings and because marijuana did not have an accepted medical use that was the end of it. I responded with a court decision that had already rejected that particular argument, and DEA replied by inviting me to send them any scientific literature, with documentation, that I thought was relevant. I realized that the only way to begin these proceedings was to file a rescheduling petition and force DEA to examine it on the record and subject to judicial review. So I conducted another round or two of extensive research at the National Library of Medicine and on July 10, 1995 I filed a 65,000-word rescheduling petition with the Drug Enforcement Administration.

The 1995 petition, and selected updates, provides an extensive review of research on marijuana and THC, concentrating on research published between 1989 and 1995..

The DEA immediately accepted the petition for filing, the law and our prior exchange of correspondence gave them little choice. The next challenge was to see that DEA referred the petition on to HHS. The referral was the key and most important objective because it guaranteed rulemaking subject to public notice and comment, regardless of the outcome of the HHS review and the nature of DEA's decision on where marijuana and THC should be scheduled. Any action by DEA would have to take place after an opportunity for public comment and a hearing, and would also be subject to judicial review. Also, once the matter has been referred to HHS the only way the government can maintain marijuana's schedule I status is for scientists at HHS to swear under oath it has a high abuse potential similar to cocaine and heroin. Getting the petition from DEA to HHS, though, took two and a half years. Interestingly enough the medical marijuana initiatives that were passed in California and Arizona in 1996 delayed DEA review of the petition. The correspondence that documents DEA's review of the petition between July 1995 and December 1997 are available in this section on the DEA's initial review of the 1995 Rescheduling Petition.

Several months before the rescheduling petition was filed the manufacturer of Marinol, the synthetic THC pill referred to in the CSA and in the petition as dronabinol, filed a rescheduling petition for their own product. I filed comments requesting a public hearing on the rescheduling of Marinol. My request was denied on the basis that my arguments raised issues of law rather than any dispute over facts. In their denial of my request for a hearing on the rescheduling of Marinol the DEA made it clear that I would receive ample opportunity to address these issues during proceedings on my own petition. DEA's denial of my request for a hearing in this matter is supplied as part of these archives for a few reasons. It provides insight into the government's argument that THC is a dangerous drug that is only safe when it is tamed by encapsulating it in sesame seed oil. It clarifies the requirements for requesting a public hearing on scheduling issues. Finally while I was able to win a few arguments with the government about starting rescheduling proceedings the government won this argument with me over the rescheduling of Marinol. If the legal issues involved were important to the rescheduling petition, they could be argued at an appropriate time.

The HHS review of the 1995 petition and earlier scheduling evaluations of cannabinoids provides more information about the scientific and medical evaluations required by the Controlled Substances Act and other reviews required under federal law. By law HHS is required to publish reports on drug abuse research every three years. They stopped just about the time the new discoveries about marijuana noted above began to emerge. HHS was asked about their failure to comply with the law requiring these reports, and their response is included in this section. In October 2000 my attorney contacted HHS and requested a status report on their review of the petition by the end of the year, which would commemorate the three year anniversary of the petition's referral to HHS. FDA responded to this request and their status report is available in this section. Finally, this section contains prior medical and scientific evaluations of THC, marijuana, and nabilone that account for their current scheduling.

On March 20, 2001 the DEA released the results of the HHS evaluation (the FDA review) and their own review of relevant information, as explained above, and formally denied the petition. The DEA and HHS reviews of the scientific record were published in the Federal Record on April 18, 2001. (See FR18ap01)

An appeal of DEA’s decision was filed with the District of Columbia circuit of the U.S. Court of Appeals. (No. 01-1182, United States Court Of Appeals For The District Of Columbia Circuit, March 19, 2002, Argued, May 24, 2002, Decided.) After briefs were filed by petitioners and DEA regarding judicial review of the DEA refusal to reschedule cannabis the Court asked for briefs on the issue of the petitioner’s standing to seek relief in the federal courts. The court’s ruling is published as Gettman v. Drug Enforcement Administration. 290 F.3d 430 (2002). May 24, 2002. The Court decided that petitioners did not have standing to subject DEA’s denial of the petition to review by the Federal Courts because the petitioners were not injured parties. In other words, DEA did not harm me by keeping marijuana in Schedule I because, for example, I was not a medical cannabis patient. The other issues raised in the legal briefs were not addressed by the Court, and consequently DEA and HHS’s legal and scientific justification for retaining marijuana in schedule I have not yet withstood judicial review and remain vulnerable to the legal challenge and arguments of the 1995 petition.

What does it all mean? There are a lot of nice sub-plots that emerge from the events reported above, especially in terms of the significance of scientific discovery and individual advocacy. The most important aspect of this matter is that in order to continue marijuana prohibition the federal government must provide scientific proof marijuana has the high abuse potential of cocaine or heroin, and if they can't marijuana prohibition will have to end. The scheduling process in the Controlled Substances Act provides a legal basis to challenge the scientific reasoning used by the government to justify marijuana's continued status as a schedule I prohibited controlled substance.

In the summer of 2002 I conducted a new survey of the scientific research on marijuana, focusing on findings published after 1995. I invited several public interest organizations involved in the medical cannabis issue to form a Coalition for Rescheduling Cannabis to file a new rescheduling petition. I solicited help from several experts on the scientific literature on medical cannabis and related issues, and with crucial assistance from Franjo Grotenherman and Gero Leson the 2002 Cannabis Rescheduling Petition was prepared and filed on behalf on the Coalition on October 9th, 2002. While repeating the argument of the 1995 petition that marijuana did not have the high potential for abuse to be a schedule I substance the new petition took note of several important developments that occurred during the late 1990s. The most important development was the acceptance of medical cannabis use by California and other states and increasing recognition of medical cannabis use by the scientific and medical communities. The 2002 Cannabis Rescheduling Petition begins with the argument that marijuana has accepted medical use in the United States. The 2002 petition was referred to HHS for a scientific and medical evaluation in mid-2004; this evaluation, required by the Controlled Substances Act, remained in progress as of mid-2006.

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