DEA’s 5‑Factor Test Predates State Law

An old fed­er­al five-fac­tor test vio­lates state sov­er­eign­ty

The thing that hath been, it is that which shall be; and that which is done is that which shall be done: and there is no new thing under the sun.

Is there any thing where­of it may be said, See, this is new? it hath been already of old time, which was before us.

Eccle­si­astes 1:9–10

In 1985, I joined a coali­tion of mar­jua­na reform orga­ni­za­tions seek­ing to resched­ule cannabis.  21 C.F.R. § 1308.43 — Ini­ti­a­tion of pro­ceed­ings for rule­mak­ing.  In 1988, an admin­is­tra­tive law judge for the Drug Enforce­ment Admin­is­tra­tion (DEA) found:

Mar­i­jua­na, in its nat­ur­al form, is one of the safest ther­a­peu­ti­cal­ly active sub­stances known to man.

Source: DEA Dock­et No. 86–22 (Sep­tem­ber 6, 1988), pp. 58–59

The peti­tion­ers ulti­mate­ly lost, the case turn­ing on a five-fac­tor test for­mu­lat­ed by the DEA to deter­mine whether a sub­stance has accept­ed med­ical use in treat­ment in the Unit­ed States.  21 U.S.C. § 812(b)(1)(B).  Alliance for Cannabis Ther­a­peu­tics v. DEA, 930 F.2d 936, 938 (D.C. Cir. 1991) (“eight fac­tor test”); Alliance for Cannabis Ther­a­peu­tics v. DEA, 15 F.3d 1131, 1135 (D.C. Cir. 1994) (“five-part test”).

While the admin­is­tra­tive hear­ings were being held, the U.S. Court of Appeals for the First Cir­cuit found:

Con­gress did not intend “accept­ed med­ical use in treat­ment in the Unit­ed States” to require a find­ing of rec­og­nized med­ical use in every state or, as the Admin­is­tra­tor con­tends, approval for inter­state mar­ket­ing of the sub­stance.

Grin­spoon v. DEA, 828 F.2d 881, 886 (1st Cir. 1987).

How­ev­er, because there were no states in the Unit­ed States that accept­ed the med­ical use of cannabis in 1987, 1991, or 1994, the five-fac­tor test did not vio­late state sov­er­eign­ty.  There was no need for the DEA to include state sov­er­eign­ty as a fac­tor.

Although cannabis had been accept­ed for med­ical use pri­or to the fed­er­al Con­trolled Sub­stances Act of 1970, its med­ical use had been dis­con­tin­ued due to a pro­pa­gan­da cam­paign in the 1930s exem­pli­fied by “Reefer Mad­ness”.

It was not until 1996 that states began accept­ing the med­ical use of cannabis again.  As of this writ­ing (June 2020), a total of 47 states and a major­i­ty of fed­er­al ter­ri­to­ries have now accept­ed the med­ical use of cannabis in treat­ment in the Unit­ed States.

In 2002, I joined anoth­er coali­tion of mar­jua­na reform orga­ni­za­tions seek­ing to resched­ule cannabis.  While the peti­tion was pend­ing, the U.S. Supreme Court reversed a deci­sion by the Attor­ney Gen­er­al to block the imple­men­ta­tion of Oregon’s Death With Dig­ni­ty (assist­ed sui­cide) statute as being out­side the scope of accept­ed med­ical treat­ment under 21 U.S.C. § 812(b).  The court found:

The Attor­ney Gen­er­al has rule­mak­ing pow­er to ful­fill his duties under the CSA.  The spe­cif­ic respects in which he is autho­rized to make rules, how­ev­er, instruct us that he is not autho­rized to make a rule declar­ing ille­git­i­mate a med­ical stan­dard for care and treat­ment of patients that is specif­i­cal­ly autho­rized under state law.

Gon­za­les v. Ore­gon, 546 U.S. 243, 258 (2006).

I noti­fied my co-peti­tion­ers that the five-fac­tor test the DEA had been using in mak­ing sched­ul­ing deter­mi­na­tions was no longer valid because of state laws autho­riz­ing the med­ical use of cannabis, but the peti­tion­ers did not want to amend their peti­tion.

In 2010, I noti­fied the DEA that I was sep­a­rat­ing myself from the oth­er peti­tion­ers because they were not using state sov­er­eign­ty as an argu­ment in their peti­tion.  By that time the DEA had already received a rec­om­men­da­tion from the Depart­ment of Health and Human Ser­vices (DHHS) on Decem­ber 6, 2006, to main­tain sta­tus quo and keep mar­i­jua­na in fed­er­al sched­ule 1.  76 Fed. Reg. 40,552 (July 8, 2011).

I inter­vened in the appeal, but the court nev­er con­sid­ered my argu­ment because the DEA had not con­sid­ered my argu­ment and had not made any rul­ing on it.  Amer­i­cans for Safe Access v. DEA, 706 F.3d 438 (D.C. Cir. 2013).

I memo­ri­al­ized my argu­ment that the DEA’s five-fac­tor test vio­lates state sov­er­eign­ty in an appli­ca­tion for cer­tio­rari to the U.S. Supreme Court.  Olsen v. DEA, No. 13–484, fig­ur­ing that I would use it again in the future.  The Nation­al Orga­ni­za­tion for the Reform of Mar­jua­na Laws (NORML) added my appli­ca­tion for cer­tio­rari to their legal brief bank in 2013.

As it turns out, Iowa’s Med­ical Cannabid­i­ol Act enact­ed in 2017 pro­vides an alter­na­tive to 21 C.F.R. § 1308.43 (Ini­ti­a­tion of pro­ceed­ings for rule­mak­ing).  21 C.F.R. § 1307.03 — Excep­tions to reg­u­la­tions pro­vides an exemp­tion from fed­er­al sched­ul­ing, which elim­i­nates the need for fed­er­al resched­ul­ing or desched­ul­ing.

In a very inter­est­ing devel­op­ment, a fed­er­al researcher has filed an appeal on May 12, 2020, in the U.S. Court of Appeals claim­ing that the fed­er­al sched­ule 1 clas­si­fi­ca­tion of cannabis is mak­ing it too dif­fi­cult to do research.  The appeal makes the same argu­ment I made in the U.S. Supreme Court in 2013, that the five-fac­tor test is invalid because it vio­lates state sov­er­eign­ty.  Scotts­dale Research Insti­tute v. DEA, No. 20–71433 (9th Cir­cuit).

In my peti­tion to ini­ti­ate fed­er­al exemp­tion pro­ceed­ings filed with the Iowa Depart­ment of Pub­lic Health on June 7, 2020, I note that with­out an exemp­tion fed­er­al sched­ul­ing would vio­late state sov­er­eign­ty. I note that the DEA’s five-fac­tor test is invalid because it would give the DEA uncon­sti­tu­tion­al author­i­ty to inter­fere with state law (“The DEA’s five-part test would seem to nul­li­fy these state laws with­out a clear del­e­ga­tion from Con­gress of that kind of con­sti­tu­tion­al author­i­ty over the states”).  Peti­tion, at pages 3–4.