7

According to the DEA’s Denial of Petition To Initiate Proceedings To Reschedule Marijuana from 2011, one reason for the cannabis plant’s Schedule I status is because it has “no currently accepted medicinal use” and it’s “chemistry is not known and reproducible”. The DEA admits “cannabinoids” have medicinal value, but they do not consider the cannabis plant to be a reliable source.

However, just because the DEA fails to recognize something has medicinal value does not mean it should be illegal. Alcohol, tobacco, sugar, coffee, etc., are not recognized as “medicine”, yet they are all lawful and legal to sell. So the DEA appeals to the other requirement of the CSA- “the potential for abuse”. According to the denial:

  1. ITS ACTUAL OR RELATIVE POTENTIAL FOR ABUSE

The first factor the Secretary must consider is marijuana's actual or relative potential for abuse. The term "abuse" is not defined in the CSA. However, the legislative history of the CSA suggests the following in determining whether a particular drug or substance has a potential for abuse:

a. Individuals are taking the substance in amounts sufficient to create a hazard to their health or to the safety of other individuals or to the community.

b. There is a significant diversion of the drug or substance from legitimate drug channels.

c. Individuals are taking the substance on their own initiative rather than on the basis of medical advice from a practitioner licensed by law to administer such substances.

d. The substance is so related in its action to a substance already listed as having a potential for abuse to make it likely that it will have the same potential for abuse as such substance, thus making it reasonable to assume that there may be significant diversions from legitimate channels, significant use contrary to or without medical advice, or that it has a substantial capability of creating hazards to the health of the user or to the safety of the community.

Comprehensive Drug Abuse Prevention and Control Act of 1970, H.R. Rep. No. 91-1444, 91st Cong., Sess. 1 (1970) reprinted in U.S.C.C.A.N. 4566, 4603.

In considering these concepts in a variety of scheduling analyses over the last three decades, the Secretary has analyzed a range of factors when assessing the abuse liability of a substance. These factors have included the prevalence and frequency of use in the general public and in specific sub-populations, the amount of the material that is available for illicit use, the ease with which the substance may be obtained or manufactured, the reputation or status of the substance "on the street," as well as evidence relevant to population groups that may be at particular risk.

If I’m understanding this correctly, it means the DEA has the authority to add anything to the list of Controlled Substances based on the fact that it’s popular, it’s widely available for illicit use (because it’s illegal), it’s easy to obtain or manufacture (because it’s a plant), and it may pose a risk to a particular group of people (ex. diabetes and sugar).

So even if I were to petition the DEA to deschedule cannabis because the National Institute on Drug Abuse admits that cannabis is not physically addictive, it is not a gateway to drugs, it does not cause cancer or emphysema, there is no evidence it negatively affects driving, there is no evidence it causes an early onset of psychosis, and there is no evidence it negatively affects teen IQ- the DEA could ignore all of that.

Does the DEA have the authority to prohibit any “substance”?

Additional source: http://lawprofessors.typepad.com/marijuana_law/2014/02/marijuana-rescheduling-and-the-potential-for-abuse-factor.html

9

The DEA has the power to classify new substances as Controlled Substances and seriously considered doing so with respect to Kratom in late 2016, even though it ultimately didn't do so. The process is mostly set forth at 21 U.S.C. §§ 811-814.

Many of its additions to the list of controlled substances have been "designer drugs" which are chemically similar to existing controlled substances in chemical effect on the human body for the same reasons for the existing substances that are controlled have that effect, but which differ chemically enough to be outside the definition of the currently controlled substances. There is a running cat and mouse game between people trying to create new designer drugs that mimic existing controlled substances and the DEA trying to ban them.

The DEA cannot ban a substance that is already under the statutory jurisdiction of another agency. For example, it couldn't classify alcohol or tobacco, which are under their own regulatory regimes, as controlled substances (which are expressly excluded from the definition of a controlled substance). Similarly, the DEA cannot schedule drugs that have been approved by the FDA for over the counter use without a prescription. U.S. v. Pickrel, 767 F.Supp. 1048 (D. Or. 1990), affirmed 967 F.2d 595.

Marijuana itself counts as a "substance" in large part because of a special definition at 21 U.S.C.A. § 802 that is particular to marijuana, and does not create a general principle applicable to other kinds of substances.

Operationally, "substances" have usually been described as specific chemicals with a specific chemical formulas, or a class of such chemicals.

There are also a number of specific exemptions for "botanicals" that may contain certain kinds of chemicals such as steroids that would otherwise be controlled substances.

Similarly, it probably couldn't classify ordinary foods regulated by the FDA and the Department of Agriculture as controlled substances without limiting the regulation to some highly processed chemical derived from an ordinary food, because the chemical makeup of ordinary food is mostly so complex that it isn't well understood (this doesn't apply in some simple examples like refined sugars, and purified salts, but would apply to most plants and animals).

Also, the regulatory process hurdles that stand in the way of removing cannabis from its Class I controlled substance status now, because the regulatory process favors the status quo, also makes it harder to add a new drug to the list than it is to keep an existing drug on the list.

It is important to understand that the way that the law works isn't a totally logical and consistent process the way that chemistry or mathematics logic works. Just because a word, like "substance", theoretically has an expensive meaning doesn't imply that it would be interpreted so expansively for legal purposes. If the DEA attempted to twist the meaning of substance to ban "sugar" (or corn syrup, perhaps), a judge would almost certainly find that this was contrary to the legislative intent and would not give the word such a broad interpretation.

  • I have read that the DEA cannot control alcohol and tobacco because of their inclusion in Subtitle E of the Internal Revenue Code, but as far as I can tell, substances like sugar, coffee, and peanuts do not have this exception- though there is substantial evidence that these substances are highly abused and there is “evidence relevant to population groups that may be at a particular risk”. Does this mean the DEA could ban any substance, regardless of whether lawful substances carry more potential for abuse or harm? – Cannabijoy Apr 4 '18 at 19:28
  • Thanks for clarifying that the DEA cannot schedule FDA-approved OTC medication, but I’m mostly concerned with food, like a vegetable such as cannabis. For example, say a new synthetic sugar is produced that is actually more harmful than sugar, but has a potential to be more profitable. The DEA makes a big propaganda campaign against sugar, claiming it’s a stimulant that causes diabetes and obesity, and it’s a gateway drug to crystal meth. Could they add sugar to the list of Controlled Substances so that the synthetic sugar would have a monopoly over the market? – Cannabijoy Apr 4 '18 at 20:58
  • Okay looks like you edited it while I was writing my comment. Does your new edit mean if I can prove cannabis is as safe as sugar, coffee, wheat bread, or grapefruit juice- a judge could rule that it’s inclusion in the CSA is unreasonable? – Cannabijoy Apr 4 '18 at 21:01
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    I know you’re cool and you’ve answered my questions before, so please bear with me as I try to take the DEA’s very long denial to its most logical conclusion- which is not very easy. You said that the DEA probably wouldn’t go after foods that are FDA approved because their chemical makeup is too complex, but that’s the very reason why they deny cannabis has medicinal value. That’s why I’m trying to leave the whole “medicinal” argument behind and see if their speculations about cannabis are reasonable. Because if they’re position is unreasonable, then Chevron wouldn’t have precedence. – Cannabijoy Apr 5 '18 at 3:54
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    @Joshua Of course their position is not reasonable. That's been obvious for a long time. It is simply a matter of politics and conservative judges backing up those stances. This isn't about applying the relevant legal standard in good faith in the least. – ohwilleke Apr 5 '18 at 4:17

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