Feature: ASA in Federal
Appeals Court Seeking to Force Government to Correct Medical Marijuana
Misinformation
from Drug War Chronicle,
Issue #581, 4/17/09
The medical marijuana advocacy group Americans for Safe
Access (ASA) was in federal appeals court Tuesday arguing that it and
its members had the right to force the federal government to correct
inaccurate statements about the therapeutic properties of marijuana. Lawyers
for the Obama administration opposed them.
In 2004, ASA filed a petition
under the Data
Quality Act seeking to force the Department of Health and Human
Services (HHS) to correct its statements that marijuana has no accepted
medical use in the United States. The Data Quality Act requires federal
government agencies to use reliable science when making regulations and
disseminating information.
After two years of delays, HHS rejected ASA's petition. The
group then filed suit in federal district court to force HHS to comply, but
the trial judge threw out the lawsuit, finding that the act did not provide
for judicial review. ASA then appealed to the US 9th Circuit Court of Appeals
in San Francisco, which is where Tuesday's hearing took place.
"The science to support medical marijuana is
overwhelming," said ASA executive director Steph Sherer. "It's time
for the federal government to acknowledge the efficacy of medical marijuana
and stop holding science hostage to politics."
The Obama administration has vowed to make science -- not
ideology -- the basis for federal government policies. On March 9, President
Obama issued a memorandum to all executive department and agency
heads saying: "The public must be able to trust the science and
scientific process informing public policy decisions," and calling for
"transparency in the preparation, identification, and use of scientific
and technological information in policymaking."
But it had other concerns last Tuesday, when Justice Department
lawyers argued against ASA in court. Assistant US Attorney Alisa Klein told a
three-judge panel of the 9th Circuit that the law allowing private citizens
to seek correction of government information had "no judicially
enforceable rights" and that it requires only that agencies review such
requests -- not that they act on them. Otherwise, she said, the courts would
be swamped with requests to second-guess government decisions on a multitude of
subjects.
The government's position would make the law meaningless,
retorted Alan Morrison, founder of Public Citizen's Litigation Group, who
argued the case along with ASA chief counsel Joe Elford. While some disputes
are too subjective for courts to intervene, others can be measured
objectively. "Two plus two is four, not five," Morrison noted. The
law provides judges a role in keeping the government honest, he added.
Members of the three-judge panel seemed torn. "The statute
is amazing and troubling," said Judge Marsha Berzon. But she told Klein
that the law appears to allow people affected by government misinformation to
get it corrected, under court order if necessary.
"The case before the 9th Circuit is about the right of
private parties to seek action to challenge the government's dissemination of
false information," said ASA spokesman Kris Hermes. "When HHS says
on its web site that there is no currently accepted medical use of marijuana
in the US, we and our members suffer by having to counter that disinformation.
We have to educate the public, public officials, physicians, and lawyers on
the reality of medical marijuana, and we are using that as giving us standing
for the lawsuit."
ASA executive director Sherer herself claims to have suffered
from government misinformation. In the group's brief to the appeals court, it relates how Sherer
rejected medical marijuana as a treatment for her condition based on
government statements it had no medical value. Only after suffering serious
side effects from conventional medications and at her physician's urging did
she finally try medical marijuana, and then found it brought her relief.
"Our aim is to correct the misinformation that the federal
government is disseminating about medical marijuana, specifically that
marijuana has no medicinal value," said ASA spokesman Kris Hermes.
"We are using an administrative mechanism -- the Data Quality Act -- in
order to achieve that, but the government has so far refused to respond
substantively to our petition."
A victory at the 9th Circuit would mean that the ASA lawsuit
could move forward. That would most likely mean the case would be remanded
back to district court to force the federal government to issue a substantive
response to the ASA petition.
"If they agree their information is inaccurate and not
based on scientific evidence, they would simply correct the statements they
are making," said Hermes. "But if they do not choose to admit that
they are disseminating unscientific information, we may have to challenge
them on the merits again in district court," he said.
While an eventual victory in the case would have no immediate
impact on federal medical marijuana policy, said Hermes, it could help lay
the foundations for moving marijuana off Schedule I as a dangerous drug with
no accepted medical use. "That could be the first domino in a series of
falling dominos that will affect federal policy," he said.
The 9th Circuit is now considering the case.
Bookmark/Search this post with:
digg
redditDrug War Issues Medical Marijuana
Politics & Advocacy Federal Courts -
Executive Branch