Bleep the science! What about the law?


On October 16, 2008, Marijuana Policy Project (MPP) filed a Data Quality Act Petition requesting that the drug czar's office correct information printed in the 2008 Marijuana Sourcebook — specifically, the claim that marijuana is the greatest cause of illegal drug abuse.

Another Data Quality Act case now pending in the U.S. Court of Appeals for the Ninth Circuit, Americans for Safe Access v. Department of Health and Human Services, No. 07-17388 (ASA v. DHHS) found there is no right to judicial review from a Data Quality Act petition. In its Order Granting Motion to Dismiss, November 20, 2007, the U.S. District Court for the Northern District of California held that "plaintiff has not shown that the action it seeks to compel is legally required."

Even if the Ninth Circuit reverses the ruling, ASA’s complaint is still based on science, as stated in the opening paragraph of their Amended Complaint:

Despite numerous peer-reviewed scientific studies establishing that marijuana is effective in treating AIDS wasting syndrome, muscle spasticity, emesis, appetite loss, and chronic pain, the Department of Health and Human Services (“HHS”) continues to tell the public that marijuana “has no currently accepted medical use in treatment in the United States.”

So, even if the Ninth Circuit agrees that HHS must rule on their petition under the Data Quality Act, ASA is still in the same position as the Cannabis Rescheduling Coalition Petition (CRC Petition) ( where any final ruling is subject to the “rational basis test” analysis we saw in ACT v. DEA, 15 F.3d 1131, 1134 (D.C. Cir. 1994):

On reviewing the Administrator's decision, we found the eight-factor test for determining whether a drug had a "currently accepted medical use" to be "in the main acceptable." ACT, 930 F.2d at 937. We noted the ambiguity of the phrase and the dearth of legislative history on point and deferred to the Administrator's interpretation as reasonable. Id. at 939 (citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843-45, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984) (court may not substitute its own construction of ambiguous statutory provision for reasonable interpretation by agency of statute entrusted to its administration)).

The DEA Administrator’s final ruling in Gettman v. DEA, 290 F.3d 430 (D.C. Cir. 2002), affirms ACT v. DEA and makes very clear what is missing:

You do not assert in your petition that marijuana has a currently accepted medical use in treatment in the United States or that marijuana has an accepted safety for use under medical supervision.

66 Fed. Reg. 20038 (April 18, 2001) (DEA Administrator’s response to Mr. Gettman's petition).

So, it’s obvious there is a missing piece that everyone else is leaving out. What about 13 state medical marijuana laws? Don’t they mean anything? What does “accepted medical use in treatment in the United States” mean? What did the U.S. Supreme Court mean in Gonzales v. Oregon?

The Attorney General ... is not authorized to make a rule declaring illegitimate a medical standard for care and treatment of patients that is specifically authorized under state law.

Gonzales v. Oregon, 546 U.S. 243, 258 (2006).

When there is enough science that 13 states decide something has accepted medical use, the question is no longer a matter of science. Science has done it's part and now its a matter of law. Do the states have any say in the matter? The U.S. Supreme Court says they do. I'm putting my bets on the U.S. Supreme Court, because the DEA has the losing hand.