Wednesday January 23, 2013

WASHINGTON -- A federal appeals court Tuesday rejected a petition to reclassify marijuana from its current federal status as a dangerous drug with no accepted medical use.

The appeals court panel denied the bid from three medical marijuana groups, including Americans for Safe Access, and several individuals. In 2011, the Drug Enforcement Administration had rejected a petition by medical marijuana advocates to change the classification.

In his majority opinion Tuesday, Judge Harry T. Edwards wrote that the question wasn’t whether marijuana could have some medical benefits, but rather whether the DEA’s decision was "arbitrary and capricious." The court concluded that the DEA action survived a review under that standard.

The ruling came just months after Colorado and Washington legalized marijuana for recreational use. Last month, President Barack Obama said that federal authorities have "bigger fish to fry" than recreational drug users in those states

Edwards, an appointee of Democratic President Jimmy Carter, was joined by Judge Merrick B. Garland, an appointee of Democratic President Bill Clinton. The third judge on the panel, Karen LeCraft Henderson, an appointee of Republican President George H.W. Bush, wrote that none of the petitioners was in a legal position to challenge the government’s stance and that the case should have been dismissed. The other two judges concluded that at least one of the people bringing the suit had standing to challenge the DEA’s action.

In the federal system, marijuana is classified as a controlled substance, categorized as having a high potential for abuse and no currently accepted medical use, together with drugs like heroin, LSD and ecstasy.

The court noted that the DEA denied the petition after the Department of Health and Human Services gave the DEA its evaluation that marijuana lacks a currently accepted medical use in the United States.

"Because the agency’s factual findings in this case are supported by substantial evidence and because those factual findings reasonably support the agency’s final decision not to reschedule marijuana, we must uphold the agency action," the court ruled.

DEA regulations define "currently accepted medical use" to require, among other things, "adequate and well-controlled studies proving efficacy."

Americans for Safe Access cited more than 200 peer-reviewed published studies demonstrating marijuana’s efficacy for various medical uses, including a 1999 study by the respected Institute of Medicine, a government adviser on health issues.

"The IOM report does indeed suggest that marijuana might have medical benefits," the court conceded. "However, the DEA fairly construed this report as calling for ‘more and better studies to determine potential medical applications of marijuana’ and not as sufficient proof of medical efficacy itself."

Contrary to what Americans for Safe Access suggests, "something more than ‘peer-reviewed’ studies is required to satisfy DEA’s standard, and for good reason," the court said.

Those challenging the government "have not pointed to ‘adequate and well-controlled studies’ confirming the efficacy of marijuana for medicinal uses," the court found.

Joe Elford, chief counsel with Americans for Safe Access, said that his group will likely file a petition for rehearing, and failing that, would seek a rehearing of the full appeals court. If that isn’t successful, he said that the group would probably appeal to the Supreme Court.

Elford said that while he was disappointed by the ruling, he said it "lays the groundwork for future cases." He pointed to a line at the end of the opinion, which said that "adequate and well-controlled studies are wanting not because they have been foreclosed but because they have not been completed."

"I kind of take it as, ‘Come back to us when those studies are completed if they actually demonstrate medical efficacy,’ " Elford said.

The DEA referred questions to the Justice Department, which did not respond.