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Powerful Court Quietly Takes Marijuana Case That Could Shatter Federal Prohibition Laws

For the first time in two decades federal courts will consider the science behind medical marijuana -- and today there is more evidence than ever.

Once again, medical-marijuana advocates are taking to the courts to eliminate the biggest barrier to legal use—the federal law that classifies marijuana as a dangerous drug with no valid medical use. 

On Oct. 16, the U.S. Court of Appeals for the D.C. Circuit, the federal appeals court that usually handles cases involving government regulations, will hear oral arguments on Americans for Safe Access v. DEA. It will be the first time in almost 20 years that federal courts have considered the science of medical marijuana, says ASA spokesperson Kris Hermes.

Specifically, ASA, a California-based patient-advocacy group, is trying to get the Drug Enforcement Administration to move marijuana out of Schedule I, the Controlled Substances Act of 1970s category for drugs with “a high potential for abuse,” “no currently accepted medical use in treatment in the United States,” and no “accepted level of safety for use under medical supervision.” Heroin, LSD, and PCP are also in Schedule I. Cocaine, methamphetamine and OxyContin are in Schedule II, legal for medical use but strongly restricted.

Two previous attempts to get the DEA to reschedule marijuana failed, but advocates believe there is enough new evidence to convince the courts. “There’s simply more science now,” says ASA chief counsel Joseph D. Elford. Since 2000, says Igor Grant of the University of California at San Diego’s Center for Medicinal Cannabis Research, the center has done six studies that showed “efficacy for marijuana over a placebo” in relieving pain caused by peripheral neuropathy (nerve damage).

This current attempt began in 2002, when a coalition of medical-marijuana and legalization advocates filed a petition with the DEA. It contended that cannabis “has an accepted medical use in the United States, is safe for use under medical supervision, has an abuse potential lower than Schedule I or II drugs, and has a dependence liability that is also lower than Schedule I or II drugs.” It requested that marijuana be moved to Schedule III (Vicodin, acetaminophen with codeine), Schedule IV (Valium, Xanax), or Schedule V (codeine cough syrup).

“Based on evidence currently available, the Schedule I classification is not tenable,” Grant wrote in the 2012 issue of the Open Neurology Journal. “It is not accurate that cannabis has no medical value, or that information on safety is lacking. It is true cannabis has some abuse potential, but its profile more closely resembles drugs in Schedule III.”

The DEA rejected the petition in June 2011. Administrator Michelle Leonhart declared that marijuana had no accepted medical use, because no form of it has been approved by the Food and Drug Administration. The Department of Health and Human Services had previously concurred that it had a high potential for abuse, because an estimated more than 14 million people get high illegally at least once a month.

“They only responded to the petition after we filed a lawsuit alleging unreasonable delay,” says Elford. “Delay, delay, and then delay some more. The government doesn’t want to take on whether marijuana has medical use.”

The DEA refused to comment on the lawsuit. It referred calls to the Justice Department, which did not return phone calls.

The DEA has consistently refused to reclassify marijuana. It did move Marinol, synthetic THC capsules, from Schedule II to Schedule III in 1999. It insists that is a viable alternative for anyone who claims they need medical marijuana. (Marinol’s manufacturer was then advertising it to AIDS patients with the slogan “This is your appetite… This is your appetite on Marinol.”) Most medical-marijuana users, however, prefer real cannabis, because smoking it or inhaling vaporized THC provides much faster relief than taking capsules orally, and as with eating marijuana, oral doses are much harder to control.