Drug Enforcement Admin

Rescheduling in Oregon - March 29, 2010

Carl Olsen — Sat, 03 Apr 2010 22:41:26 GMT

Here's an interesting video from the Oregon Board of Pharmacy saying they just got back from speaking with the DEA in Washington, D.C.

Oregon Board of Pharmacy Set to Reschedule Marijuana from Art Witkowski on Vimeo.

The strategy moving forward

Carl Olsen — Fri, 02 Apr 2010 00:09:18 GMT

I received an email from Americans for Safe Access a moment ago. I've been meaning to write this post, but this email got me moving on it:

ASA will build the federal framework that will bring safe and legal access to all Americans by 2013.

For too long the medical marijuana movement has been forced into a reactionary and defensive position, constantly having to push back against outrageously unjust legislation our movement has been so busy fighting for what we don't want, we lost sight of how to fight for what we need. That ends today.

I don't know why, and ASA doesn't say, but I suspect that ASA's strategy is quite different than mine. I hope I'm wrong and pleasantly surprised (maybe ASA has a clue), but I just haven't spoken with anyone who has my perspective on this situation. So, here goes with my strategy moving forward.

The federal framework that will bring safe and legal access to all Americans by 2013 is already in place. The federal drug law classifies marijuana as having no accepted medical use in treatment in the United States, and yet 14 states have accepted the medical use of marijuana since 1996. What's wrong with this picture?

Well, here it is in a nutshell, folks. None of those 14 states has bothered to officially tell the U.S. Drug Enforcement Administration (DEA) to remove marijuana from its current classification. Furthermore, all 14 states tell patients they are in violation of federal law and there is nothing the state can do to protect them from the DEA.

Sure, President Obama has issued a memo to federal prosecutors telling them not to prosecute medical marijuana patients in states that have enacted medical marijuana laws, but that was only necessary because the states have not been doing their part under the federal drug law.

That is what is so critical about my work here in Iowa. Iowa should not be the 15th state to enact a state medical marijuana law that leaves patients to the mercy of the DEA. The DEA really is not obligated to do anything unless a state uses the administrative procedures set out in the federal drug law to have marijuana federally reclassified.

I suspect ASA is going to tell us they have a legislative solution and they are going to have a new law enacted. Well, a new law is not the answer. The answer is simply obeying current federal law and following the procedures set out in the federal drug law. I predict that Iowa is going to do that in 2012 and we'll have safe and legal access to medical marijuana by 2013 as the result.

Obama makes changes I can believe in 2009

Carl Olsen — Tue, 01 Dec 2009 11:23:29 GMT

On January 20, 2009, the Obama Administration released a memorandum instructing federal agencies not to use federal regulations to preempt state laws. Here is a link: click here. On January 30, 2009, the Obama Administration released a second memorandum instructing federal agencies not to use federal regulations to preempt state laws. Here is a link: click here

On January 22, 2009, the Obama Administration released guidance for religious exemptions from the federal Controlled Substances Act. Here is a link to the online version: click here and a link to the version I scanned and converted to a text document: click here

On May 20, 2009, the Obama Administration released a memorandum instructing federal agencies not to use federal regulations to preempt state laws. Here is a link to the online version: click here. Here is a link to a copy I downloaded: click here.

Executive Order 13132 of August 4, 1999 ("Federalism")
Federal Register, Vol. 64, No. 153, Tuesday, August 10, 1999, page 43255
Presidential Memorandum of May 20, 2009 ("Preemption")
Federal Register, Vol. 74, No. 98, Friday, May 22, 2009, page 24693

On October 19, 2009, the U.S. Department of Justice released guidelines for respecting states' rights to enact medical marijuana laws. Here is a link to the online version: click here and a link to the version I downloaded: click here

American Medical Association - November 11, 2009

Carl Olsen — Tue, 17 Nov 2009 11:59:22 GMT

AMA calls for removal of marijuana from Schedule I of the Controlled Substances Act - Executive Summary

AMA calls for removal of marijuana from Schedule I of the Controlled Substances Act - Text of Resolution

Peer-Reviewed Studies on Marijuana

Carl Olsen — Mon, 15 Jun 2009 14:22:07 GMT

This looks like a useful site:

Peer-Reviewed Studies on Marijuana

Recent activity in state and federal courts

Carl Olsen — Tue, 17 Mar 2009 13:14:37 GMT

My how time flies when you are having fun. Time just keeps on slipping away.

I've been busy preparing legal briefs in two of my cases regarding the unlawful scheduling of marijuana in the state and federal controlled substances acts.

I filed my Petition for Review of the Drug Enforcement Administration's refusal to remove marijuana from Schedule I in the U.S. Court of Appeals for the Eighth Circuit on March 2, 2009, and the response from the Drug Enforcement Administration is due on March 30, 2009.

My state marijuana scheduling case took an interesting twist when the Iowa Board of Pharmacy claimed in its Respondent's Brief that I did not address the scheduling criteria or submit any evidence. I don't know if the Board of Pharmacy threw it away, but I have certified mail receipts showing they received my legal arguments and evidence. I filed a Motion to add my Memorandum of Law to the record on review, and I filed another Motion to add my Exhibit to the record on review. I filed my Reply Brief on March 16, 2009.

A hearing in my state case has been scheduled for March 27, 2009

Obama Smoke and Mirrors Show

Carl Olsen — Fri, 06 Feb 2009 14:41:37 GMT

Everyone is in a tizzy over recent DEA raids on medical cannabis users in California since President Obama took office on January 20, 2009. Americans for Safe Access reported on February 5 that White House Spokesman Nick Shapiro expects President Obama to end that policy. On February 5, the National Organization for the Reform of Marijuana Laws reported that a new Zogby Poll found that 72% of voters surveyed said President Obama should end the DEA raids. The Drug Policy Alliance is urging people to call the White House. The Marijuana Policy Project has reprinted the text of an article from the Washington Times describing the situation, and the Drug War Chronicle provides more details.

It will be interesting to see how President Obama tries to implement a new policy. Will there be an official policy that we can see in writing? Will it be an executive order? The Hinchey-Rohrabacher Amendment (introduced in Congress from 2003-2007) would have withheld funding for DEA enforcement, but it still leaves a foggy area that medical use of marijuana would still be technically illegal but simply withholding the money to implement a valid federal law. Since possession of marijuana will still be a federal crime, even a seed, the DEA will obviously still be making busts in medical marijuana states. The DEA will then, somehow, have to determine whether people they are trying to bust are protected by state law and avoid arresting them (or, something like that, right?).

I just can't see how this is going to prevent the DEA from abusing state-authorized medical users. Removing marijuana from schedule I of the Controlled Substances Act would make federal and state law consistent, as they should be. The DEA is simply a regulatory agency. Congress never gave the DEA power to make medical decisions in the states. Removing marijuana from schedule I would make it easier to understand and would not rely on the good will of the Obama Administration when George Bush III takes over in 2013 or 2017. How is Obama going to convince the DEA that marijuana actually has accepted medical use anywhere in the United States? I don't think this is going to be as easy as the drug policy reform organizations make it out to be. I like the part where the reform groups ask us to send them more money because Obama kept his word to do something. That certainly gives the reform groups to reason to portray all of this talk (and that's all it is, so far) as a productive use of resources. Is it?

I mean, think about this. Are we asking Obama not to enforce the law? Isn't that exactly what this says?

Gee, what other laws would we simply like unenforced rather than repealed?

How simple. Just leave the law on the books and don't enforce it. Why didn't I think of that?

Bleep the science! What about the law?

Carl Olsen — Sun, 28 Dec 2008 17:00:36 GMT

On October 16, 2008, Marijuana Policy Project (MPP) filed a Data Quality Act Petition requesting that the drug czar's office correct information printed in the 2008 Marijuana Sourcebook — specifically, the claim that marijuana is the greatest cause of illegal drug abuse.

Another Data Quality Act case now pending in the U.S. Court of Appeals for the Ninth Circuit, Americans for Safe Access v. Department of Health and Human Services, No. 07-17388 (ASA v. DHHS) found there is no right to judicial review from a Data Quality Act petition. In its Order Granting Motion to Dismiss, November 20, 2007, the U.S. District Court for the Northern District of California held that "plaintiff has not shown that the action it seeks to compel is legally required."

Even if the Ninth Circuit reverses the ruling, ASA’s complaint is still based on science, as stated in the opening paragraph of their Amended Complaint:

Despite numerous peer-reviewed scientific studies establishing that marijuana is effective in treating AIDS wasting syndrome, muscle spasticity, emesis, appetite loss, and chronic pain, the Department of Health and Human Services (“HHS”) continues to tell the public that marijuana “has no currently accepted medical use in treatment in the United States.”

So, even if the Ninth Circuit agrees that HHS must rule on their petition under the Data Quality Act, ASA is still in the same position as the Cannabis Rescheduling Coalition Petition (CRC Petition) (http://www.drugscience.org/) where any final ruling is subject to the “rational basis test” analysis we saw in ACT v. DEA, 15 F.3d 1131, 1134 (D.C. Cir. 1994):

On reviewing the Administrator's decision, we found the eight-factor test for determining whether a drug had a "currently accepted medical use" to be "in the main acceptable." ACT, 930 F.2d at 937. We noted the ambiguity of the phrase and the dearth of legislative history on point and deferred to the Administrator's interpretation as reasonable. Id. at 939 (citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843-45, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984) (court may not substitute its own construction of ambiguous statutory provision for reasonable interpretation by agency of statute entrusted to its administration)).

The DEA Administrator’s final ruling in Gettman v. DEA, 290 F.3d 430 (D.C. Cir. 2002), affirms ACT v. DEA and makes very clear what is missing:

You do not assert in your petition that marijuana has a currently accepted medical use in treatment in the United States or that marijuana has an accepted safety for use under medical supervision.

66 Fed. Reg. 20038 (April 18, 2001) (DEA Administrator’s response to Mr. Gettman's petition).

So, it’s obvious there is a missing piece that everyone else is leaving out. What about 13 state medical marijuana laws? Don’t they mean anything? What does “accepted medical use in treatment in the United States” mean? What did the U.S. Supreme Court mean in Gonzales v. Oregon?

The Attorney General ... 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).

When there is enough science that 13 states decide something has accepted medical use, the question is no longer a matter of science. Science has done it's part and now its a matter of law. Do the states have any say in the matter? The U.S. Supreme Court says they do. I'm putting my bets on the U.S. Supreme Court, because the DEA has the losing hand.

Medical Marijuana Letters to 13 State Attorneys General

Carl Olsen — Sat, 20 Dec 2008 18:11:47 GMT

On December 12, 2008 I mailed certified letters to each of the Attorneys General for the 13 states that accept the medical use of marijuana, asking them why they have not contacted the United States Drug Enforcement Adminsitration about removal of marijuana from schedule I of the federal Controlled Substances Act. Links to those letters are listed below:

All of those letters have been received:

AK
7007 1490 0002 0045 9699
Delivered, December 19, 2008, 7:49 am, JUNEAU, AK 99811
Arrival at Unit, December 19, 2008, 5:44 am, JUNEAU, AK 99803
Acceptance, December 13, 2008, 9:33 am, DES MOINES, IA 50317

CA
7007 1490 0002 0045 9682
Delivered, December 18, 2008, 9:59 am, SACRAMENTO, CA 95815
Arrival at Pick-Up-Point, December 18, 2008, 9:38 am, SACRAMENTO, CA 95814
Arrival at Unit, December 18, 2008, 9:14 am, SACRAMENTO, CA 95813
Acceptance, December 13, 2008, 9:33 am, DES MOINES, IA 50317

CO
7007 1490 0002 0045 9675
Delivered, December 17, 2008, 11:07 am, DENVER, CO 80203
Arrival at Unit, December 17, 2008, 9:02 am, DENVER, CO 80218
Acceptance, December 13, 2008, 9:32 am, DES MOINES, IA 50317

HI
7007 1490 0002 0045 9668
Delivered, December 19, 2008, 8:49 am, HONOLULU, HI 96813
Acceptance, December 13, 2008, 9:31 am, DES MOINES, IA 50317

ME
7007 1490 0002 0045 9651
Delivered, December 16, 2008, 8:49 am, AUGUSTA, ME 04333
Arrival at Unit, December 16, 2008, 7:14 am, AUGUSTA, ME 04330
Acceptance, December 13, 2008, 9:31 am, DES MOINES, IA 50317

MI
7007 1490 0002 0045 9644
Delivered, December 16, 2008, 9:21 am, LANSING, MI 48909
Arrival at Unit, December 16, 2008, 6:49 am, LANSING, MI 48924
Acceptance, December 13, 2008, 9:30 am, DES MOINES, IA 50317

MT
7007 1490 0002 0045 9637
Delivered, December 19, 2008, 5:57 am, HELENA, MT 59601
Arrival at Unit, December 19, 2008, 5:20 am, HELENA, MT 59601
Acceptance, December 13, 2008, 9:29 am, DES MOINES, IA 50317

NV
7007 1490 0002 0045 9613
Delivered, December 17, 2008, 9:58 am, CARSON CITY, NV 89701
Acceptance, December 13, 2008, 9:28 am, DES MOINES, IA 50317

NM
7007 1490 0002 0045 9620
Delivered, December 18, 2008, 8:36 am, SANTA FE, NM 87504
Arrival at Unit, December 18, 2008, 6:54 am, SANTA FE, NM 87501
Acceptance, December 13, 2008, 9:28 am, DES MOINES, IA 50317

OR
7007 1490 0002 0045 9606
Delivered, December 18, 2008, 10:39 am, SALEM, OR 97301
Acceptance, December 13, 2008, 9:27 am, DES MOINES, IA 50317

RI
7007 1490 0002 0045 9590
Delivered, December 17, 2008, 9:25 am, PROVIDENCE, RI 02903
Arrival at Unit, December 17, 2008, 7:08 am, PROVIDENCE, RI 02903
Acceptance, December 13, 2008, 9:26 am, DES MOINES, IA 50317

VT
7007 1490 0002 0045 9583
Delivered, December 16, 2008, 11:33 am, MONTPELIER, VT 05609
Arrival at Unit, December 16, 2008, 11:04 am, MONTPELIER, VT 05602
Acceptance, December 13, 2008, 9:26 am, DES MOINES, IA 50317

WA
7007 1490 0002 0045 9576
Delivered, December 18, 2008, 7:18 am, OLYMPIA, WA 98504
Arrival at Unit, December 18, 2008, 6:49 am, OLYMPIA, WA 98501
Acceptance, December 13, 2008, 9:25 am, DES MOINES, IA 50317

Olsen v. Mukasey Update - 12/17/2008

Carl Olsen — Thu, 18 Dec 2008 14:19:44 GMT

I received another response from the Government.

The Government responded to my Motion for Summary Judgment with an Opposition and a Response to my statement of material facts.

I responded with a Reply to the Government's Opposition and a Reply to the Government's statement of material facts.

Drug Enforcement Admin

Rescheduling in Oregon - March 29, 2010

The strategy moving forward

Obama makes changes I can believe in 2009

American Medical Association - November 11, 2009

Peer-Reviewed Studies on Marijuana

Recent activity in state and federal courts

Obama Smoke and Mirrors Show

I mean, think about this. Are we asking Obama not to enforce the law? Isn't that exactly what this says?

Gee, what other laws would we simply like unenforced rather than repealed?

How simple. Just leave the law on the books and don't enforce it. Why didn't I think of that?

Bleep the science! What about the law?

Medical Marijuana Letters to 13 State Attorneys General

December 12, 2008 - Letter to the Attorney General of Alaska

December 12, 2008 - Letter to the Attorney General of California

December 12, 2008 - Letter to the Attorney General of Colorado

December 12, 2008 - Letter to the Attorney General of Hawaii

December 12, 2008 - Letter to the Attorney General of Maine

December 12, 2008 - Letter to the Attorney General of Michigan

December 12, 2008 - Letter to the Attorney General of Montana

December 12, 2008 - Letter to the Attorney General of Nevada

December 12, 2008 - Letter to the Attorney General of New Mexico

December 12, 2008 - Letter to the Attorney General of Oregon

December 12, 2008 - Letter to the Attorney General of Rhode Island

December 12, 2008 - Letter to the Attorney General of Vermont

December 12, 2008 - Letter to the Attorney General of Washington

Olsen v. Mukasey Update - 12/17/2008