Scottsdale Research Institute Sues DEA and USDOJ For the Right to Study Cannabis To Help Wounded Veterans*
[*Excerpted From The Author’s Book, Psychedelica Lex, Coming To Amazon August 1]
Gary Michael Smith Esq. | © 2020
For intrepid scientists, such as Arizona’s Dr. Sue Sisley, the nation’s lead researcher on the efficacy of cannabis use to treat post-traumatic stress disorder, the DEA has been frustratingly difficult. To comply with federal law, Dr. Sisley’s Scottsdale Research Institute (SRI) is required to use federally sourced cannabis grown exclusively on a single 12-acre farm run by the University of Mississippi. The University provides Dr. Sisely with cannabis that Dr. Sisley describes as subpar, moldy, powdery, and tainted with extraneous material like sticks and seeds. Dr. Sisley had been waiting years for DEA to approve her request that DEA authorize other cannabis cultivators who could provide higher quality medicine for her research.
Dr. Sisely’s research is aimed at helping wounded veterans, and all she was asking for was access to better quality cannabis – quality on par with what is available at modern dispensaries – for her research. For whatever reason, DEA just will not get it done. The DEA sat on her applications since 2016, processing none of them. Congress even got involved. Groups of United States senators reached out to the DEA and to the USDOJ for answers. They were rebuffed.
In June 2019, after years of delay and silence, SRI filed a mandamus petition in the United States Court of Appeals for the D.C. Circuit seeking to compel DEA to process SRI’s application. The court ordered DEA to respond to SRI’s petition by August 28, 2019. The day before the court deadline, DEA noticed SRI’s application as well as all the other pending applications, mooting SRI’s lawsuit. At the same time, DEA indicated that new rules were needed to “evaluate the applications under the applicable legal standard and conform the program to relevant laws” before SRI’s application or any of the other pending applications could move forward.
After seven months more delay, in late March 2020, in the middle of the COVID-19 pandemic, DEA released its proposed rule. DEA says the proposed rule would amend the agency’s existing regulations “only to the extent necessary to comply with the CSA and to ensure DEA grants registrations that are consistent with the Single Convention as it pertains to marihuana.” However, unbeknownst to SRI, the other applicants, Congress, or the public, in June 2018, the Justice Department (“DOJ”), through the Office of Legal Counsel (“OLC”), issued a memo wherein it reinterpreted the relevant statutory provision governing the pending applications, effectively blocking them. OLC concluded that DEA could register applicants to cultivate marijuana only if the registration scheme is consistent with the Single Convention on Narcotic Drugs, an international drug treaty governing cannabis and other substances. Therefore, according to the OLC memo, because the existing scheme was non-compliant, DEA could not register any of the pending applicants.
Interestingly, despite this memo and the conclusion that its cultivation program was in violation of the treaty, DEA continued to register the University of Mississippi as the sole DEA-approved cultivator of cannabis in the United States. Despite almost a dozen congressional inquiries, DOJ only released this memo in late-April as part of a settlement after SRI brought claims against DOJ and DEA under the Freedom of Information Act.
On May 21, 2020, SRI filed an action against DEA in the United States Court of Appeals for the Ninth Circuit, contending DEA has misapplied the Controlled Substances Act in considering petitions to reschedule marijuana. As of the time of this writing, that action remains pending. DEA has still not authorized any new cannabis cultivators.
Gary Michael Smith is an attorney and arbitrator and founding member of the Phoenix Arizona-based Guidant Law Firm. He is also a founding director and current president of the Arizona Cannabis Bar Association, board member of the Arizona Cannabis Chamber of Commerce, and contributing author to GreenEntrepreneur.