This spring, nearly five years after the Obama administration promised to end the federal government's longstanding, anomalous monopoly on marijuana for medical research, the Drug Enforcement Administration (DEA) tentatively approved applications by several independent suppliers. But the DEA still maintains that the plant belongs in Schedule I of the Controlled Substances Act (CSA), a category supposedly reserved for especially dangerous drugs with no accepted medical use.
At the center of both disputes is the Arizona-based Scottsdale Research Institute (SRI), one of the organizations that received preliminary DEA approval to grow marijuana. SRI President Suzanne Sisley, a psychiatrist who has studied marijuana's usefulness as a treatment for post-traumatic stress disorder, is asking the U.S. Court of Appeals for the 9th Circuit to reject the DEA's rationale for keeping marijuana in Schedule I. Sisley says the agency is wrong to ignore state recognition of marijuana's medical utility.
The CSA gives the DEA the authority to reschedule drugs in consultation with the Department of Health and Human Services. The National Organization for the Reform of Marijuana Laws filed the first petition asking the DEA to reclassify cannabis half a century ago. But neither that case nor subsequent challenges made much headway, because federal courts have deferred to the agency's interpretation of the CSA's scheduling criteria. According to the DEA, marijuana has "no currently accepted medical use" because it does not satisfy a five-part test that the agency invented, which demands the sort of evidence that would be required to win approval of a new medicine by the Food and Drug Administration. In the DEA's view, the fact that most states allow patients to use marijuana for symptom relief is irrelevant.
"Based on the statutory text, structure, history, purpose—and the original understanding of the statute—'currently accepted medical use' means 'legitimate' or 'lawful medical purpose,'" says the petition for review in Sisley v. DEA. "This is the only interpretation that captures the cooperative federalism vision of the CSA and respects state sovereignty." In determining whether medical use of marijuana is legitimate, Sisley says, the drug's legal treatment by 36 states surely should count for something.
"Can DEA deny that marijuana has a 'currently accepted medical use in treatment in the United States' when more than two-thirds of the States have enacted legislation greenlighting marijuana's use as medicine?" Sisley's opening 9th Circuit brief asks. "The unambiguous text of [the statute], canons of construction, the CSA's history and purpose, and common sense all converge on a single, resounding answer: 'No.'"