Patients battle federal cannabis ban in appeals court

By Martin Williams

The nation’s largest medical marijuana patient advocacy group, Americans for Safe Access (ASA), filed a petition with the federal court of appeals March 22 in its epic battle to force the federal government to comply with its own laws on medical marijuana.

The UN drug control treaties authorizes nations to allow the medical use of cannabis and the federal Drug Enforcement Administration (DEA) is required to move the plant out of its banned status, Schedule 1, if it has accepted medical use. Currently 18 states and thousands of studies agree that it has medical value and is wrongly prohibited.

In its widely watched case that seeks to reclassify marijuana for medical use, ASA v. DEA, the patient group seeks a rehearing before the original panel, as well as seeking full (en banc) review by the US Court of Appeals for the Washington DC Circuit. The circuit court had granted plaintiffs standing — recognized its right to sue the federal government to reclassify marijuana — but denied the appeal on its merits on Jan. 22, 2013 by setting a new, virtually impossible to meet standard for assessing medical efficacy.

Essentially, it held that if the DEA says cannabis has no accepted medical value and insists that the plant must pass all the federal requirements used for a single molecule medicine and do so without anyone being allowed to do those studies, it must be right because DEA alone — not scientists — gets to pick and choose what studies to accept. Its position has been likened to the medieval church declaring that the world was flat simply because church bureaucrats proclaimed it to be so, despite all evidence to the contrary.

“To deny that sufficient evidence is lacking on the medical efficacy of marijuana is to ignore a mountain of well-documented studies that conclude otherwise,” said ASA Chief Counsel Joe Elford, who argued the appeal before the D.C. court last October. “The Court has unreasonably raised the bar for what qualifies as an ‘adequate and well-controlled’ study.” ASA cited more than 200 peer-reviewed studies in its appeal, but the court held that plaintiffs must produce evidence from Phase II and Phase III clinical trials as used by companies trying to bring a new drug to market. The DEA has blocked such studies from being undertaken with cannabis.

The Coalition for Rescheduling Cannabis, made up of individuals and organizations including ASA, filed a petition to reclassify marijuana in 2002 that was denied by DEA in July 2011, after ASA sued the Obama Administration for unreasonably delaying the answer. The appeal to the DC Circuit was the first time in nearly 20 years that a federal court has reviewed the issue of whether adequate scientific evidence exists to reclassify marijuana. At that time the court had rejected the patients’ standing to seek reclassification.

National polls since have consistently shown support for medical marijuana among Americans at around 80 percent. 

Advocates point out that the research approval process for marijuana, controlled by the National Institute on Drug Abuse (NIDA), is unique and only allows research into harmful effects, not medical efficacy. After Rep. Earl Blumenauer (D-OR) and several other members of Congress introduced HR689 in February, the “States’ Medical Marijuana Patient Protection Act,” hundreds of supporters met in Washington DC to lobby for its passage. It would reschedule marijuana allow states to establish production and distribution laws without interference by the federal government, and remove current obstacles to research.

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