Multiple Challenges to DEA Control Over Medical Marijua

The Drug Policy Alliance’s new report, The DEA: Four Decades of Impeding and Rejecting Science, is released at a pivotal time, as federal legislators consider limiting financial support of the DEA. On May 29, the U.S. House of Representatives approved a bipartisan appropriations measure to withhold funding from the DEA’s raids of state-legalized medical marijuana facilities. The Senate followed suit last week with the proposal of a similar funding amendment prohibiting the DEA from pursuing providers and patients of medical marijuana and extracted cannabididol oil. Also last week, New York became the 23rd state to legalize medical marijuana. 

The Case Against the DEA
The Drug Policy Alliance (DPA) advocates for drug law reform, including legalization, sensible regulation, and harm reduction. The Alliance challenges the DEA’s willful disregard of scientific evidence that has kept marijuana in the federal list of most-highly controlled substances. Their report reviews the basis of the DEA’s authority and details five cases: three unsuccessful petitions to reschedule marijuana, a researcher’s application to create a licensed research-grade marijuana production facility, and – as a point of comparison – the speedy process through which MDMA (Ecstasy) was classified as Schedule I. 

The Controlled Substances Act (CSA) of 1970 granted the U.S. Attorney General with responsibility over classification, scheduling, and enforcement of drugs; Nixon created the Drug Enforcement Agency (DEA) in 1973 as the designated agency for handling these matters.  Drugs are classified into Schedule I – Schedule V based on medical and scientific evidence.  The distinction of interest between Schedule I and Schedule II-V is that Schedule I drugs have “no currently accepted medical use,” a fact that was the focus of the 1995 and 2002 petitions to reschedule marijuana.  In its 2011 response, the DEA brazenly claimed the following:

According to established case law, marijuana has no ‘currently accepted medical use’ because the drug’s chemistry is not known and reproducible, there are no adequate safety studies, there are no adequate and well-controlled studies proving efficacy; the drug is not accepted by qualified experts, and the scientific evidence is not widely available.

The DEA’s position seems patently ridiculous, given just a few touchstones from the past decade.  First, the medical use of marijuana has been legal in the state of California since 1996, supported by the Institute of Medicine’s 1999 recommendation that marijuana be allowed for some patients.  Second, the 2009 AMA Policy: Medical Marijuana, calls for a review of marijuana’s Schedule I status to facilitate further medical studies of marijuana.

In contrast to the lethargic pace at which the DEA responds to rescheduling petitions (6-22 years), the report documents the DEA’s speedy action to schedule drugs new to the market, such as MDMA (two years), synthetic cannabinoids such as Spice, K2 (less than one year), and synthetic stimulants like mephedrone and MPDV (less than two years), with control of the latter two substances dictated by the Synthetic Drug Control Act of 2011.

DEA’s Control over Research
The report reveals a systematic effort to undermine and obstruct scientific research. The National Institute on Drug Abuse (NIDA) is the only legal producer of marijuana for research. Studies of marijuana require review by the FDA, NIDA and the Department of Health and Human Services (HHS). A 1999 HHS directive stipulates that NIDA should not provide research marijuana to studies with the goal of developing an FDA-approved medicine. This has resulted in what the report labels as a catch-22:  only FDA-approved studies may apply to NIDA for marijuana product, yet NIDA is compelled to reject the majority of those studies.  NIDA has repeatedly delayed delivery or refused to provide approved studies with product. Finally, the low-quality marijuana produced by NIDA is not representative of the marijuana currently available to the public:  NIDA has only a limited number of low potency strains (7% THC) compared to the market (15-24% THC).

Recommended Action
The report states that the DEA is “incapable of accurately assessing the state of medical and scientific knowledge about those drugs and scheduling them appropriately.” The DPA recommends that the United States Attorney General designate a different agency as responsible for classifying drugs and making schedule determinations, perhaps even commissioning a non-governmental agency, such as the National Academy of Sciences. NIDA’s current monopoly on research-grade marijuana should be eliminated, instead contracting to licensed private producers.