D.C. Circuit Rules DEA's Denial of Petition to Reschedule Marijuana Was Not Arbitrary and Capricious
By Katie Goetzl
The U.S. Court of Appeals for the District of Columbia Circuit, in Americans for Safe Access v. Drug Enforcement Agency, No. 11-1265 (Jan. 22, 2013), ruled that the Drug Enforcement Administration’s (DEA) denial of a petition to initiate proceedings to reschedule marijuana was not arbitrary and capricious. The court’s decision means that the rejected petition will not be sent back to the DEA for reconsideration.
Marijuana is currently classified as a Schedule I drug under the Controlled Substances Act (CSA). A Schedule I drug has, among other things, a high potential for abuse and no currently accepted medical use in treatment in the United States. Non-Schedule I drugs may be obtained for personal medical use by prescription. Interested parties can petition the DEA to reclassify drugs to less restrictive schedules. In 2002, the Coalition to Reschedule Cannabis petitioned the DEA to reschedule marijuana. As required, the DEA submitted the petition to the Department of Health and Human Services (HHS) for scientific and medical evaluation and a recommendation regarding the appropriate schedule. HHS’s recommendation is binding on the DEA as long as it is based on scientific and medical determinations. In 2006, HHS concluded that marijuana lacks a currently accepted medical use in the United States. Five years later, the DEA denied the petition, finding that “[t]he limited existing clinical evidence is not adequate to warrant rescheduling of marijuana under the CSA.” The Coalition to Reschedule Cannabis, two other advocacy groups, and several individuals petitioned for review of the DEA’s action.
The petitioners argued that the denial was arbitrary and capricious because the DEA ignored the scientific studies showing that marijuana is effective to treat various medical conditions. The DEA responded that studies showing marijuana’s safety and effectiveness as a medicine were not available and that experts had not reached a consensus on the issue.
The court ruled that the DEA’s action was not arbitrary and capricious. The petition requested that marijuana be classified as a Schedule III, IV, or V drug. However, under the CSA, drugs in those schedules must have a “currently accepted medical use.” The DEA’s regulations define “currently accepted medical use” to require, among other things, “adequate and well-controlled studies proving efficacy.” As required by the procedural posture of the case, the court deferred to the DEA’s decision that such studies do not exist.
Despite recent state activity purporting to legalize marijuana use for medical and recreational purposes, it appears that from a federal law perspective marijuana will remain a controlled substance that cannot be legally obtained, for now.
Photo credit: Sebastien Roche-Lochen Photography