United States: INSIGHT: Will The DEA's Marijuana Rulemaking Authority Go Up In Smoke In The Second Circuit?

The Second Circuit recently chastised the excessively slow DEA administrative review process, which on average takes nine years. Wilson Elser attorneys say although the court didn't act in this marijuana reclassification case, it retained jurisdiction and may step in if the DEA fails to act promptly.

For decades, marijuana advocates have lobbied the federal government to reschedule marijuana, touting its recognized medical benefits and citing the increasing number of states that have implemented medical marijuana programs.

Legalization efforts may now be taking an unexpected detour through the Second Circuit Court of Appeals, which could potentially enter an order that bypasses the legislature and Drug Enforcement Agency (DEA).

Reviving a challenge to the federal government's classification of marijuana as a controlled substance, the Second Circuit in Washington v. Barr recently chastised the DEA's notoriously slow review process and retained jurisdiction to facilitate the possible rescheduling of marijuana on its own.

Plaintiffs Cite Medical, Health Benefits

Currently, marijuana is a Schedule I controlled substance, meaning it has "no currently accepted medical use in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse." The Washington case could provide an unlikely vehicle for removing marijuana from the federal government's classification as a Schedule I drug.

In Washington, a group of medical marijuana patients and advocates filed suit against the DEA, challenging marijuana's status as a Schedule I drug under the Controlled Substances Act (CSA). The plaintiffs, ranging from a minority business owner in the medical marijuana space, to children with severe medical problems and an Iraqi war veteran with PTSD, claim that medical marijuana provides life-saving relief where traditional medication falls short.

They argue that marijuana's prohibitive Schedule I status poses serious health risks and unfair economic disadvantages. Plaintiffs allege that developments in medical research and government practice require the federal government to reclassify marijuana.

In 2018, the Southern District of New York dismissed the action, finding the plaintiffs failed to exhaust their administrative remedies before seeking relief in federal court. The exhaustion of administrative remedies doctrine states that federal courts should refrain from adjudicating a controversy if the party bringing suit might obtain adequate relief through a proceeding before an administrative agency. The Southern District held that the plaintiffs should have pursued the declassification of marijuana through the DEA first.

Second Circuit Agrees, but Retains Jurisdiction

On appeal, the Second Circuit largely agreed with the trial court's holding, but it went out of its way to retain jurisdiction over the action and keep the case active.

Dissatisfied with the DEA's slow-moving administrative review process—which on average takes nine years—the Second Circuit stated "such long delays cast doubt on the appropriateness of requiring exhaustion." Indeed, to facilitate swifter action by the DEA, the Second Circuit retained jurisdiction "exclusively for the purpose of inducing the agency to act promptly."

Accordingly, the Second Circuit is holding the case in abeyance and has given the plaintiffs six months to file a petition seeking DEA review of their challenge to marijuana's Schedule I status. If the plaintiffs seek agency review, and the agency fails to act with alacrity, the Second Circuit left the door open for the plaintiffs to return and the court will take whatever action might become appropriate.

Although the court did not define a timeline for "prompt" action, the Second Circuit's stern warning should result in the agency moving expeditiously.

Moving Forward

The CSA authorizes the DEA—by delegation from the U.S. attorney general—to move drugs, including marijuana, to a lower schedule, or to de-schedule drugs entirely. When the Washington plaintiffs formally petition the DEA to reschedule marijuana, the DEA will be expected to move swiftly through the burdensome process, as required by the Second Circuit.

Once the Washington plaintiffs file their petition, the DEA will begin collecting necessary data to aid in its determination of whether to reschedule marijuana. Then, in accordance with 21 U.S.C. § 811(b), the attorney general, through the DEA, will request a medical and scientific evaluation and scheduling recommendation from the Department of Health and Human Services. The HHS will then evaluate the issues and make a written recommendation on whether to reschedule marijuana to other schedules (II through V), remove marijuana from the list of controlled substances completely, or keep marijuana in Schedule I.

The HHS must consider eight criteria in 21 U.S.C. § 811(c) in reaching its recommendation. The criteria are:

  1. actual or relative potential for abuse;
  2. scientific evidence of its pharmacological effect;
  3. current scientific knowledge;
  4. history and current pattern of abuse;
  5. scope, duration, and significance of abuse;
  6. risk, of any, to public health;
  7. immediate precursor; and
  8. its psychic or physiological dependence liability.

If the HHS determines that marijuana should either be rescheduled or de-scheduled, and the attorney general finds that this change is warranted based on substantial evidence, the attorney general will initiate the rulemaking process.

Since this is a long and burdensome process, we may see the Second Circuit exercise its jurisdictional reach and issue a final ruling on the case or remand it back to the trial court for additional fact-finding.

Regardless of the outcome, this important court decision continues to push the federal conversation on marijuana reclassification forward.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Originally Publish by Bloomberg Law

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Wilson Elser Moskowitz Edelman & Dicker LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Wilson Elser Moskowitz Edelman & Dicker LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions