Medical Marijuana: Obama's War On Pot Ramps Up In Colorado, Key Swing State

#1 - I repeat, when he was running for president in 2008, Obama insisted that medical marijuana was an issue best left to state and local governments. "I'm not going to be using Justice Department resources to try to circumvent state laws on this issue," he vowed, promising an end to the Bush administration's high-profile raids on providers of medical pot, which is legal in 16 states and the District of Columbia.

#2 - There are no federal laws that allow for the sale of marijuana under any condition, neither in nor out of compliance with state laws, so the argument about state laws not overriding federal law is moot.

For the most part, those stores that are out of compliance were in their location before the regulations were created (and in some cases, before the schools were there), and had been grandfathered into the local law.
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Medical Marijuana: Obama's War On Pot Ramps Up In Colorado, Key Swing State

Alliance for Cannabis Therapeutics v. DEA. 930 F .2d 936 (1991). The Court ruled that two of the criteria used by DEA in making their findings were unreasonable.

Marijuana Rescheduling Petition; Denial of Petition, Remand. DEA. 57 FR 10499 March 26, 1992. DEA formally rejects Judge Young’s findings without using unreasonable criteria. 

Alliance for Cannabis Therapeutics v. DEA. 15 F.3d 1131 (1994). The Court upholds DEA’s rejection of Judge Young’s recommendations.

b. Petition #2 filed by Jon Gettman in 1995.

Petition #2 was an extensive catalog of research and other data specified in 21 USC 812 that emerged after the record was closed in the prior proceedings before Judge Young. Petition #2 focused primarily on challenging whether cannabis has the high potential for abuse required for schedule I status.

* Petition for Rescheduling Cannabis filed July 10, 1995  
* Petition accepted by DEA on July 27, 1995.
* Petition referred to HHS on December 17, 1997.
* Recommendations sent to DEA on January 17, 2001.

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Medical Marijuana: Obama's War On Pot Ramps Up In Colorado, Key Swing State

Macdonald, Donald I. Acting Asst. Secretary for Health. Scientific and medical findings & recommendations on Nabilone. Letter to John Lawn. April 25, 1985. Nabilone is pharmacologically identical to THC. The review of Nabilone is interesting because it relies on different standards than the earlier reviews of THC and marijuana. An FDA advisory panel was utilized, and the panel debated whether Nabilone should be a schedule III or schedule IV drug. The panel recommended schedule III status. The Asst. Sec. of Health recommended schedule II for Nabilone because the panel had not recommended rescheduling for THC, a schedule II drug at that time. (846 KB PDF)

Schedules of Controlled Substances: Rescheduling of Synthetic Dronabinol in Sesame Oil and Encapsulated in Soft Gelatin Capsules from Schedule I to Schedule II. DEA 50 FR 42186-87 October 18, 1985 Notice of Proposed Rulemaking

Schedules of Controlled Substances: Rescheduling of Synthetic Dronabinol in Sesame Oil and Encapsulated in Soft Gelatin Capsules From Schedule I to Schedule II; Statement of Policy. DEA 51 FR 17476-78 July 13, 1986 Final Rule and Statement of Policy

Schedules of Controlled Substances; Proposed Placement of Nabilone into Schedule II. DEA 51 FR 22085-86 June 18, 1986 Notice of Proposed Rulemaking

Schedules of Controlled Substances; Hearing on Petition to Reschedule Marijuana and its Components. DEA 51 FR 22946-47 June 24, 1986 Notice of hearing on petition for rescheduling of marijuana and its components.

Grinspoon v. DEA. 828 F.2d 881 (1987) While this case did not concern marijuana the Court noted that scheduling under the CSA does rely on the relative abuse potential of listed ssubstances.

Schedules of Controlled Substances; Placement of Nabilone into Schedule II. DEA. 52 FR 11042-43. Final Rule. April 7, 1987.

United States Department of Justice, Drug Enforcement Administration. In The Matter Of Marijuana Rescheduling Petition, Docket No. 86-22. Opinion and Recommended Ruling, Findings of Fact, Conclusions of Law and Decision of Administrative Law Judge. Francis L. Young, Administrative Law Judge. Dated: September 6, 1988.  Judge Young recommends that marijuana be placed in schedule II because it has an accepted medical use in the United States.

Marijuana Scheduling Petition; Denial of Petition. DEA 54 FR 53767-53785. December 29, 1989. In this filing the DEA formally rejects Judge Young’s recommendations.  

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Medical Marijuana: Obama's War On Pot Ramps Up In Colorado, Key Swing State

III. The legal and policy record.

a. Petition # 1, filed by the National Organization for the Reform of Marijuana Laws (NORML) May 18, 1972.

NORML v. Ingersoll 497 F.2d 654 (1974). NORML filed a rescheduling petition under provisions of the CSA. The government declined to initiate proceedings on the basis of their interpretation of U.S. treaty commitments. The Court ruled against the government and ordered them to process the petition.

NORML v. DEA 559 F.2d 735 (1977). The government continued to rely on treaty commitments in their interpretation of scheduling related issues concerning the NORML petition. In this decision the Court makes it clear that the CSA requires a full scientific and medical evaluation and the fulfillment of the rescheduling process before treaty commitments can be evaluated.

NORML v. DEA, Unpublished Disposition, 1980 U.S. App. LEXIS 13100, October 16, 1980. The Court orders the government to start the scientific and medical evaluations required by the NORML petition.

Brandt, Edward N. Asst. Secretary for Health. Scientific and medical findings & recommendations on THC. Letter to Francis M. Mullen, Jr. August 16, 1982. 

Brandt, Edward N. Asst. Secretary for Health. Scientific and medical findings & recommendations on the marijuana plant material. Letter to Francis M. Mullen, Jr. May 13, 1983. 

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Medical Marijuana: Obama's War On Pot Ramps Up In Colorado, Key Swing State

Here are the legal actions over the years to reschedule marijuana from schedule I to schedule III.  

United States Code Congressional and Administrative News. 91st Congress – Second Session. 1970. Comprehensive Drug Abuse Prevention and Control Act of 1970. pgs 4566 – 4657. St. Paul, MN: West Publishing Company.

The legislative history includes a chart indicating fables and facts about marijuana (circa 1970) provided to Congress by the National Institute of Mental Health. (pg 4577-4578) The rescheduling process is reviewed on pages 4599 to 4605. The criteria required for scheduling related findings are defined on pages 4601-4603.

An important letter from Roger Egeberg of the the Department of Health Education and Welfare to Congress regarding the scheduling of cannabis is on pages 4629 – 30. This August 14, 1970 letter states:


” Some question has been raised whether the use of the plant itself produces ‘severe psychological or physical dependence” as required by a schedule I or even schedule II criterion. Since there is still a considerable void in our knowledge of the plant and effects of the active drug contained in it, our recommendation is that marihuana be retained in schedule I at least until the completion of certain studies now underway to resolve this issue. If those studies make it appropriate for the Attorney General to change the placement of marihuana to a different schedule, he may do so in accordance with the authority provided under section 201 of the bill.”

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Medical Marijuana: Obama's War On Pot Ramps Up In Colorado, Key Swing State

Title 21. Food and Drugs. Chapter 13. DrugAbusePrevention and Control, Subchapter I, Control and Enforcement. Part B. Authority to Control; Standards and Schedules.

Sec. 811. Authority and criteria for classification of substances 

Under 21 USC 811 the AttorneyGeneral has the authority to add to, remove from, or transfer controlled substances between the regulatory schedules established by the ControlledSubstancesAct. This process is known as a rulemaking procedure and may be initiated by the AttorneyGeneral, the Secretary of HHS, or on the petition of any interested party. (21 USC 811 (a))

At the initiation of scheduling proceedings the AttorneyGeneral gathers the necessary data and requests from the SecretaryOfHHS a scientific and medical evaluation of all available evidence as well as a recommendation on the appropriate scheduling for the drug or substance in question. (21 USC 811 (b))

This evaluation will consider 8 specific factors in making findings to satisfy the criteria for scheduling established in Section 812 regarding accepted medical use, safety for use, abuse potential, and dependence liability. InOtherWords the factors listed in 811(c) are to be used to evaluate the scientific record to assess the criteria established for each respective schedule of the CSA.

21 USC 811(c) Factors determinative of control or removal from schedules. 

“In making any finding under subsection (a) of section 812 of this title, the AttorneyGeneral shall consider the following factors with respect to each drug or other substance proposed to be controlled or removed from the schedules:

(1) Its actual or relative potential for abuse.
(2) Scientific evidence of its pharmacological effect, if known.
(3) The state of current scientific knowledge regarding the drug or other substance.
(4) Its history and current pattern of abuse.
(5) The scope, duration, and significance of abuse.
(6) What, if any, risk there is to the PublicHealth.
(7) Its psychic or physiological dependence liability.
(8) Whether the substance is an immediate precursor of a substance already controlled under this subchapter.”

Sec. 812. Schedules of controlled substances.  

There are five schedules of controlled substances. The findings required for each of the schedules involve the following issues: potential for abuse, currently accepted medical use in treatment in the United States, safety for use under medical supervision, and the drug’s dependence liability. Schedule I drugs are characterized by a high potential for abuse and a lack of accepted medical use. Schedule II drugs have a high potential for abuse but also have an accepted medical use. The remaining schedules all require an accepted medical use. Schedule III drugs have a lower potential for abuse and dependence liability than Schedule I and II drugs. Schedule IV drugs have a lower potential for abuse and dependence liability than Schedule III drugs, and Schedule V drugs have a lower potential for abuse than Schedule IV drugs. (21 USC 812)

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Medical Marijuana: Obama's War On Pot Ramps Up In Colorado, Key Swing State

How do you come to believe that?  

The federal government's definition of marijuana:

"all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber provided from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil or cake or the sterilized seed of such plant, which is incapable of germination."

I. Statutory Provisions.

The rescheduling process consists of the following stages:

* Filing of Petition with DEA
* Acceptance of Petition by DEA
* Initial Review by DEA
* Referral to HHS
* Scientific and Medical Evaluation by HHS
* HHS Report to DEA
* Evaluation of Additional Information by DEA
* Publication of DEA Decision
* (Judicial Review by the US Court of Appeals)
* (Public Hearing on Disputed Matters of Fact)

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