DEA Rejects Marijuana Rescheduling

Stop The Drug War

from Drug War Chronicle, Issue #567, 1/9/09

The DEA has rejected yet another petition seeking to remove marijuana from Schedule I of the Controlled Substances Act (CSA), this one from Iowa-based marijuana reformer Carl Olsen. It is only the latest petition rejection by the agency in a glacially-paced struggle to reschedule marijuana that has been going on since 1972.

But Olsen and other advocates of the rescheduling tactic say that is to be expected, and the rejection is only the opening phase of this particular battle, not the end of the line. And while Olsen heads to federal court to challenge the DEA ruling, another petition to reschedule marijuana is still in process, as it has been for the past six years.

Richard Nixon was just beginning his second term in office when the National Organization for the Reform of Marijuana Laws (NORML) filed the first rescheduling petition. It took 22 years and numerous court challenges before the DEA finally rejected that petition. In the meantime, the DEA rescheduled marijuana's primary psychoactive ingredient, THC, as a Schedule II drug in 1985 and loosened controls over THC even further by rescheduling it to Schedule III in 1999. That allows doctors to prescribe Marinol, but not marijuana.

Another rescheduling petition, filed by Olsen in 1992, was rejected years later, as was a 1995 petition submitted by former NORML head, researcher, and professor of public policy Jon Gettman. In 2002, Gettman, in association with a long list of supporters, submitted yet another Cannabis Rescheduling Petition, which remains pending.

Under the CSA, he argues, substances must meet several criteria to be placed in Schedule I, the most restrictive schedule. The substance must have a high potential for abuse, it must have "no currently accepted medical use" in the US, and there must be a lack of accepted safety for use of the substance. Both the Olsen petition that was rejected last month (although the decision was not published until this week) and the pending Gettman petition argue that marijuana no longer qualifies to be placed in Schedule I because it does have "currently accepted medical use" in the US, citing in particular the ever-growing number of states that have legalized its medicinal use.

But the two petitions differ in the way they seek to remedy the situation, and it is this difference that accounts for the vastly different pace at which they have been handled by the DEA. While the Gettman petition is still awaiting a ruling six years after it was filed, Olsen's petition was only filed this year. The Gettman petition seeks to reschedule marijuana through the administrative process, the Olsen petition argues that the issue is a matter of statutory law. Under the CSA, if marijuana is found to have "currently accepted medical use," it cannot be Schedule I.

"I filed in May, filed a federal lawsuit in September, and got a ruling December," said Olsen. "The DEA has never moved that fast on a petition in its history, and by denying the petition, it is avoiding the possibility of having to deal with it again because now it will instead go back to the court of appeals."

Olsen's petition was not a request, but a demand that DEA recognize the reality that marijuana cannot be a Schedule I drug, he said. "I didn't ask for anything; I demanded that they comply with the law. It's not a Schedule I drug, and they are breaking the law by keeping it there," he said. "The statute says it can't be a Schedule I drug if it has accepted medical use, and 13 states say it has accepted medical use. Doesn't that mean anything?"